Jeffrey LewisThe Case Against ElBaradei

Our colleague John Carlson, the former head of the Australian Safeguards and Nonproliferation Office (ASNO), has joined the list of those burned by the Wikileaks cable dump.

Apparently John wrote a non-paper entitled, The Case Against ElBaradei, for the consideration by US diplomats planning a campaign against ElBaradei’s third term as IAEA Director-General. He provided it to the USG, the cable asserts, without clearing it through his own interagency process.  (I’ve always imagined the Australian interagency process as something out the Australian University of Australia skit: “Hello Bruce, it’s Bruce here.” “Hello Bruce.” “Say would you clear this non-paper, Bruce?” “Sure thing Bruce, no problem.”)

The full-text of Carlson’s non-paper is in the comments, since it is not protected by US classification.

AFP published portions of the cable under the headline “US, Australia schemed against IAEA chief: cable” — although I think “schemed” is a bit unfair.  Sure,  Carlson probably should have cleared the paper back home, but his arguments against ElBaradei were pretty widespread at the time. Carlson, like many others, believed that the IAEA DG was obligated to judge Iran in noncompliance, which likely would have led the Board to refer Iran’s case to the UN Security Council.  Carlson believed this was the most likely route to a  successful resolution of the Iranian nuclear issue:

— If ElBaradei had shown leadership on the non-compliance issue by expressing the judgment that Iran’s conduct was non-compliance, the Board would have found it very hard to find otherwise. Instead, ElBaradei took the view this is a “political” decision, to be made by the Board. The effect was to turn a largely technical issue into a political one, politicizing the Board. This played nicely into the hands of Iran which had encouraged the formation of a NAM chapter in Vienna, to present a “NAM position” in the Board.

— ElBaradei’s reports to the Board appear to have been composed with the object of stalling a non-compliance finding. As well as avoiding the “N”-word, there were extraordinary statements like “there is no evidence that the … undeclared nuclear material and activities … were related to a nuclear weapons programme”, confusing the question of the standard of proof for a non-compliance finding.

— Iran’s success in avoiding a non-compliance finding has emboldened it to press on with the nuclear program. It seems likely the situation will end in confrontation through the Iranians’ failure to understand the strength of opposition to Iran becoming a nuclear power. Meanwhile, the handling of the non-compliance issue has seriously damaged the integrity and credibility of the IAEA’s processes. A change is needed in the IAEA leadership, to return the Agency to its technical function.

I don’t think pointing out that you believe a different DG would be better is “scheming” — it is simply, as the title suggests, making the case against ElBaradei’s judgment with regard to Iran. Consider a very similar “open memorandum” to ElBaradei that George Perkovich published in Foreign Policy:

Unfortunately, some of the agency’s recent work gives the appearance of political trimming. Your recent reports on Iran have neglected to mention by name countries that supplied Iran’s nuclear capabilities, such as China and Pakistan. Then there was the ill-advised political judgment in your November 2003 report on Iran in which you opined that there was “no evidence that the previously undeclared nuclear activities and material” documented by agency investigators “was related to a nuclear weapon program.” That line was probably intended to keep Tehran from cutting off further inspections and withdrawing from the Non-Proliferation Treaty.

It may have been diplomatically shrewd, but it wasn’t a statement of fact. If you confine yourself to collecting and reporting facts with uncompromising vigor, leaving the interpretation to the Board of Governors, individual states, and the U.N. Security Council, you will minimize political controversy directed at the agency. As important, you will force member states and the Security Council to stop shirking their responsibilities for enforcement, as they did in 2002 when the agency reported North Korea’s treaty noncompliance, but the Security Council, including the United States, did nothing. If other states don’t like the way the United States pursues enforcement, they should do it themselves, not dump the hardest problems on the IAEA. And if China and Russia want to avoid having the Security Council authorize binding sanctions against states that break international rules, for fear their own behavior could be sanctionable someday, don’t let them create the impression that it is the IAEA that is weak. Make the facts so clear that coalitions of the willing must then resolve crises, as Britain, France, and Germany are attempting with Iran. Your courage in taking slings and arrows from all sides is admirable. But international security ultimately requires states to take the lead.

This view was really quite widespread in early 2005. Indeed, I think it remains the dominant view in the United States. (For a very tight and fair articulation of this view, which I happen to disagree with, I highly recommend Greg Schulte’s article Strengthening the IAEA: How the Nuclear  Watchdog Can Regain Its Bark.)

There are really two core arguments against ElBaradei.  One is procedural, relating to whether ElBaradei overstepped his authority by not immediately assessing Iran to be in noncompliance. The other is outcome-oriented, relating to whether a finding of noncompliance would have improved the chances for a deal.

The issue of whether ElBaradei overstepped his authority or not is, to my view, academic.  The Director-General is a political actor who, among other things, protects the equities of the agency.  Perhaps it would be better if the the DG simply reported facts to the board, but very few people complained when ElBaradei allowed p0litics to shield Egypt and South Korea from referral, despite evidence of noncompliance. (An admirable exception to this is Pierre Goldschmidt who has argued that the Board should acknowledge it was a mistake not to find Egypt and the ROK in noncompliance.) I have tended to excuse ElBaradei’s worst moments, at least during his first two terms, as the inevitable result of managing political forces that could destroy the IAEA. I certainly count that November 2003 sentence that rankles Carlson and Perkovich as one of the worst moments intended to placate the Iranians.  I go back-and-forth on the 2007 workplan, though I am basically for it.  There is an awful lot I don’t like about how ElBaradei handled his job, especially after the Nobel Prize, but at least some of the people arguing for an apolitical watchdog are really hoping for a Western lapdog.  I don’t put Carlson in that camp, though perhaps the description fits some of the folks who got his memo.

If we accept that the IAEA Direct0r-General will be attuned to politics, in particular placating the NAM, then we are left with a question of outcomes.  Was ElBaradei wrong?  Would referral to the Security Council in 2003 have improved the opportunity for a deal?

My judgment is that referral in 2003 would have ended the last, best chance for a deal, although the US and Europe missed the chance in any event.  We know that in precisely this same period, Iran’s response to international pressure was to “halt” (I prefer “pause”) the portions of its so-called “weaponization” effort (which, really, I think of as a kind of parallel program).  As I have argued elsewhere, this was the best time to make something stick.  ElBaradei, for all his faults, was probably right to press the Bush Administration to seize the moment.  I find it hard to believe that anyone in his position who believed he saw the window for a diplomatic solution closing could simply stay quiet.

With hindsight, we can say that Iran’s referral to the Security Council in February 2006 does not seem to have chastened Iran as might have been expected.  Iran, as ElBaradei predicted, simply resumed enrichment and suspended compliance with its Additional Protocol. Iran is now embarking on a very suspicious endeavor at Fordow and who knows where else.  Iran has not, as ElBaradei feared, withdrawn from the NPT, but that may be a matter of style as much as intent.  Salami slicing seems to be the strategy of the day.

I don’t think its fair to say that John Carlson was “scheming” against ElBaradei.  I do think, however, he was wrong about the best policy course, although even that is hardly clear.  There are at least plausible arguments to be made that more pressure might have made a difference in 2003 with Khatami than with Ahmadinejad in 2006 or that there was never any chance of a deal at all, making it more important to refuse to legitimize the Iran nuclear program.  On balance, though, it seems to me there was a opportunity, now probably passed, to negotiate something short of an Iranian nuclear deterrent.

Who is to blame for missing that opportunity?  It seems backwards to me to argue that ElBaradei’s diplomatic involvement somehow crowded out proper diplomatic efforts to head off an Iranian bomb or provided a convenient excuse to shirk responsibility.  On the contrary, I would argue that it was the absence of engagement by the United States — particularly in the pre-2007 timeframe — that left a vacuum for ElBaradei to fill.  ElBaradei’s involvement was a symptom of the dysfunction affecting negotiations with Iran, not the cause.

It’s the old story about pointing a finger, then counting the ones aimed  in the opposite direction.

Comments

  1. Jeffrey (History)

    IRAN – THE CASE AGAINST ELBARADEI

    [John Carlson]

    — Legitimacy is important to the Iranian regime. The regime constantly emphasises Iran’s “legal right” to pursue uranium enrichment. Loss of legitimacy would be a serious blow – it would undermine Iran’s international support, and make the Iranian public aware that the regime is breaking international law.

    — It is beyond any argument that Iran is in non-compliance with its safeguards agreement – and with the NPT. A non-compliance finding by the IAEA Board would strip Iran of legitimacy. This is why Iran has fought so hard against such a finding – although the Iranians say they “do not care” if the case is referred to the Security Council, their efforts to avoid this indicate otherwise.

    — The IAEA Statute requires the DG to transmit the Board any non-compliance report from the IAEA’s inspectors. This implies a judgment from the inspectors and/or the DG that the behavior concerned constitutes non-compliance.

    — The Iranian situation was complicated by the requirement in the IAEA Statute for non-compliance to be reported to the Security Council, and the belief by some that if that happened Iran would cease cooperation with the IAEA, or even leave the NPT. Hence the opportunity was presented for the Iranians to introduce plea-bargaining – until now an alien concept in IAEA practice.

    — A number of parties – including ElBaradei as well as the EU3 – share the view that referring Iran to the Security Council would achieve nothing, because of the prospect of an impasse amongst the P5, and therefore that negotiations with Iran should be attempted outside the Security Council. Unhelpfully, ElBaradei himself sought to insert himself into the negotiation process, attempting to broker a deal with the Iranians (at the same time, the IAEA’s website was touting ElBaradei’s merits for the Nobel Peace Prize).

    — The EU3 and ElBaradei approach runs counter to the IAEA’s role as set out in the Statute – if the IAEA comes across a matter that is within the Security Council’s responsibilities, the matter is to be referred to the Council. That might result in a negotiating process outside the Council, as in the case of the DPRK, but this is for the Council, not the IAEA, to manage.

    — If ElBaradei had shown leadership on the non-compliance issue by expressing the judgment that Iran’s conduct was non-compliance, the Board would have found it very hard to find otherwise. Instead, ElBaradei took the view this is a “political” decision, to be made by the Board. The effect was to turn a largely technical issue into a political one, politicizing the Board. This played nicely into the hands of Iran which had encouraged the formation of a NAM chapter in Vienna, to present a “NAM position” in the Board.

    — ElBaradei’s reports to the Board appear to have been composed with the object of stalling a non-compliance finding. As well as avoiding the “N”-word, there were extraordinary statements like “there is no evidence that the … undeclared nuclear material and activities … were related to a nuclear weapons programme”, confusing the question of the standard of proof for a non-compliance finding.

    — Iran’s success in avoiding a non-compliance finding has emboldened it to press on with the nuclear program. It seems likely the situation will end in confrontation through the Iranians’ failure to understand the strength of opposition to Iran becoming a nuclear power. Meanwhile, the handling of the non-compliance issue has seriously damaged the integrity and credibility of the IAEA’s processes. A change is needed in the IAEA leadership, to return the Agency to its technical function.

  2. Amy (History)

    Dammit — I agree with you: “I would argue that it was the absence of engagement by the United States — particularly in the pre-2007 timeframe — that left a vacuum for ElBaradei to fill. ”

    Note that wikileaks also implicate Amano — in the opposite direction: The cast him as “solidly in the US court” on the Iran issue.

    And in a statement read during an IAEA board of governors meeting, representatives of the NAM nations noted “with concern, the possible implications of the continued departure from standard verification language in the summary of the report of the director general [Yukio Amano]”.

    So, on balance, El Baradei was a better DG and respected by more of the NPT members.

    His views on Iran’s alleged nuclear weapons program is also boosted by the view of our DNI Clapper.

    There is no evidence of any Iranian nuclear weapons program.

    Carson is wrong to say that Iran was in noncompliance when there was no diversion of any declared nuclear material.

    If anything, arbitration ought to have been initiated.

  3. MohammadD (History)

    Thanks for the post. I have a couple of questions:

    (Sorry if this one has been asked before) Was the non-compliance argument against Iran only based on the violation of the infamous modified Code 3.1 of the Subsidiary Arrangements? Were there other violations which these critics believe makes Iran’s non-compliance “beyond any argument”?

    On the mentioned November 2003 sentence, I believe that Iran has its own quarrels over sentences in other reports, esp. those by Amano. The most recent one seems to be Iran’s response to GOV/2011/29. Can you (or someone else knowledgeable about the legal/procedural details) please comment on these? I’m referring only to those parts which mention unfair sentences in the report or those which Iran believes Amano does not have the authority to say.

  4. anon (History)

    Iran was found in non-compliance with its safeguards obligations for reasons that have nothing to do with the modified Code 3.1 of the Subsidiary Arrangements to its safeguards agreement. The litany of “breaches” and “failures” to comply with its safeguards agreement is set fort in the IAEA’s November 2003 report (http://www.iaea.org/Publications/Documents/Board/2003/gov2003-75.pdf), which describes a long (18-year) pattern of deliberate concealment of undeclared nuclear material, facilities, and activities, particularly involving uranium enrichment.

    Iran did not agree to the modified Code 3.1 until February 2003, and continued to observe it until after it was found in non-compliance in September 2005, so that was not a factor.

    I agree partly with Jeffrey that the failure of U.S. engagement was a large part of the problem. The fact that the United States had recently invaded Iraq after dismissing the IAEA’s conclusions that Iraq had not restarted its nuclear program had greatly undermined U.S. credibility. It also led ElBaradei to fear that the United States was looking for an excuse to attack Iran. ElBaradei seemed determined to deny the United States that excuse, which led him to the kind of weasel words that Carlson decries.

    But I disagree that an early “report” (the word used in the IAEA Statute) of Iran’s non-compliance to the UN Security Council would have been counterproductive. Such a report was fully justified by November 2003. Far more than now, Iran seemed to fear – and therefore responded to – international pressure over its nuclear program. My view is that a credible threat of Security Council action, coupled with serious U.S. engagement, could have led to a resolution of the crisis. This is, of course, speculation about what might have been.

    • MohammadD (History)

      Thank you, anon. Turns out it was a completely uninformed question.
      After taking a look at GOV/2003/75, I’m now glad that Ahmadinejad wasn’t president then! It seems that Iran’s expressed and stressed “full cooperation” and promised “corrective measures” at that time obliged ElBaradei to take a softer tone and saved Iran from early referral to UNSC.

  5. Amy (History)

    Coming back to the subject of the post, John Carson’s text is revealing since it shows just how politicized the case against Iran has become. John argues that a non-compliance finding be trumped up and Iran’s case referred to the UNSC since in John’s opinion this would “strip Iran of legitimacy” — not because of any technical compliance reasons.

    John says:

    “A non-compliance finding by the IAEA Board would strip Iran of legitimacy. This is why Iran has fought so hard against such a finding – although the Iranians say they “do not care” if the case is referred to the Security Council, their efforts to avoid this indicate otherwise. ”

    What more evidence does one need to understand that the case against Iran is political?

    Well, OK, there is also the fact that Amano has been revealed by wikileaks to have a bias:

    http://www.csmonitor.com/World/Middle-East/2010/1202/WikiLeaks-cable-portrays-IAEA-chief-as-in-US-court-on-Iran-nuclear-program

    • anon (History)

      How can you ignore the sentence that immediately precedes the line you quote:

      “It is beyond any argument that Iran is in non-compliance with its safeguards agreement – and with the NPT.”

      The primary argument for reporting Iran’s non-compliance to the Security Council was always the facts (the many “breaches” and “failures” reported in GOV/2003/75) and the law (Article XII.C of the IAEA Statute).

    • Amy (History)

      anon — that is a fair question.

      The reason I am biased towards ignoring John Carlson’s statement is that it evidently was part of a political scheme to get Iran referred to the UNSC.

      As noted below in IAEA report GOV/2008/4 Dated: 22 February 2008, the relevant questions were resolved in Iran’s favor, in any case, so Iran appears to have been vindicated and Carlson proven wrong.

      What is disturbing is that the new DG Amano has chosen to re-hash these old trumped up allegations and the news outlets are picking it up as if there is amazing new evidence for an an Iranian nuclear weapon program just released in the new IAEA reports. There is not.

      There is no evidence that Iran is weaponizing at the moment.

      Even our DNI Clapper has said that clearly: he has said he has “high confidence” that Iran’s weaponization (such as it may have been) ended about a decade ago.

      John Carlson’s advocacy has, unfortunately, worked to cause a trainwreck.

      Technical compliance people should not do political advocacy. This leads to illegitimacy. Such as has occurred with the IAEA.

      If there was an disagreement between the IAEA and Iran (that did not involve nuclear material diversion), the course of action was clear: arbitration. This is written into the CSA.

  6. Amy (History)

    Any reason you felt my response to Anon needed to be deleted? Did I insult anyone or say anything wrong?

    @Anon —

    Could you kindly be more precise in what way Iran is in non-compliance — at the moment?

    Indeed there were breaches in the past, and this “litany” of old suspected and alleged breaches was resolved in Iran’s favor in IAEA report GOV/2008/4 Dated: 22 February 2008. I quote:

    http://www.iaea.org/Publications/Documents/Board/2008/gov2008-4.pdf

    “The Agency has been able to continue to verify the non-diversion of declared nuclear material in Iran. Iran has provided the Agency with access to declared nuclear material and has provided the required nuclear material accountancy reports in connection with declared nuclear material and activities. Iran has also responded to questions and provided clarifications and amplifications on the issues raised in the context of the work plan, with the exception of the alleged studies. Iran has provided access to individuals in response to the Agency’s requests. Although direct access has not been provided to individuals said to be associated with the alleged studies, responses have been provided in writing to some of the Agency’s questions.

    53. The Agency has been able to conclude that answers provided by Iran, in accordance with the work plan, are consistent with its findings — in the case of the polonium-210 experiments and the Gchine mine — or are not inconsistent with its findings — in the case of the contamination at the technical university and the procurement activities of the former Head of PHRC. Therefore, the Agency considers those questions no longer outstanding at this stage. However, the Agency continues, in accordance with its procedures and practices, to seek corroboration of its findings and to verify these issues as part of its verification of the completeness of Iran’s declarations.”

    In para 54 the IAEA says that there were still some outstanding issues but that these had nothing to do with nuclear materials diversion:

    “54. The one major remaining issue relevant to the nature of Iran’s nuclear programme is the alleged studies on the green salt project, high explosives testing and the missile re-entry vehicle….However, it should be noted that the Agency has not detected the use of nuclear material in connection with the alleged studies, nor does it have credible information in this regard. The Director General has urged Iran to engage actively with the Agency in a more detailed examination of the documents available about the alleged studies which the Agency has been authorized to show to Iran.”

    Since missile delivery systems have nothing to with IAEA safeguards it is a stretch to think El Baradei should have been tasked with looking into Iran’s missile program.

    Iran is providing about the level of cooperation it is supposed to provide given that it has not ratified the Additional Protocol. Saying that Iran is in breach because it is not going beyond what it has ratified is asking too much of Iran. (The UNSC is not forcing the US to ratify the CTBT either.)

    If the IAEA had/has any disagreement with Iran (outside of nuclear materials accountancy) then it had/has the option of kicking off arbitration.

    As it now stands, UN SC sanctions’ conditions go beyond asking Iran to cooperate with the IAEA, but rather try to force it to abandon Iran’s enrichment program and try to force it to ratify the A.P.

    Please do not get me wrong: it would be just lovely if Iran decided to ratify the A.P., but like Brazil and Argentina — you cannot force them to do so.

    I would be pleased to discuss this further with you.

    • anon (History)

      I did not claim that Iran is currently in non-compliance, and I don’t that is relevant to the point I was making.

      The requirement in the IAEA Statute is for the IAEA Board of Governors to report any non-compliance that it finds to the Security Council, not just current non-compliance. In the cases of Romania (1992) and Libya (2004), the Board reported non-compliance that either had been or was well on the way to being resolved. In Libya’s case, the path toward resolving the non-compliance involved eliminating Libya’s previously undeclared enrichment program.

      The really important and difficult question is what it takes to resolve non-compliance. In the case of a clandestine enrichment program, is it good enough to place that program under safeguards? In North Korea’s case, would it be sufficient to place all its separated plutonium under safeguards? Or does a satisfactory resolution require dismantling the latent weapons production capability?

      The NPT and the IAEA Statute are silent on these questions. The Security Council has the responsibility and broad discretion to maintain international peace and security, but is inevitably political and often controversial.

      There is a reasonable argument that this type of safeguards non-compliance – a clandestine nuclear program – cannot be resolved without an Additional Protocol, since the Additional Protocol was designed to enable the IAEA to conclude (normally after several years) that a state has no clandestine nuclear activities. In my view the Additional Protocol is necessary, but not sufficient.

    • Amy (History)

      You are certainly entitled to your opinion that the Additional Protocol is necessary but not sufficient, but sovereign states are free to ratify or not ratify any treaties or protocols they wish.

      What is abundantly clear is the UNSC sanctions route has been a train-wreck, and has not produced cooperation — see the excellent comment by yousaf below.

      What is also clear is that there is no evidence for any Iranian nuclear weapons program: both the ex-DG and our DNI agree on this. Even the latest IAEA report has no evidence for any Iranian weaponization.

      The ultimate truth is this: 20% enriched Uranium is considered L.E.U. (as in Low E.U.) by the IAEA itself and countries can stockpile whatever quantities they feel like — legally.

      Why not complain about the Brazilian nuclear program — also sans A.P. — instead which is a much bigger worry than Iran?

    • anon (History)

      Three points in response to Amy:

      1. Politicization of non-compliance findings. Iran’s non-compliance was clear as of November 2003. Amy does not dispute this point. The IAEA Statute requires the Board of Governors to report any non-compliance it finds to the UN Security Council. The Board did not make that finding formally until September 2005, and did not report it to the Council until March 2006. It is this delay that politicized what would otherwise be a purely legal/technical process.

      2. The relationship between safeguards compliance and weaponization. Amy states that there is no evidence of Iranian weaponization activities, as if this is needed for a non-compliance finding. It is not. An 18-year undeclared enrichment program is clear non-compliance with Iran’s basic undertaking in its safeguards agreement: to accept safeguards on all nuclear material.

      3. What does it take to resolve safeguards non-compliance? For Amy and others who think the efforts to date have been a “train wreck,” I’d like to know what they would propose. Do they believe that Iran has already done everything it needs to do? Would they advocate a “no-fault” response to clandestine nuclear activities, where all a country need do is place its formerly secret program under safeguards? That seem like an open invitation to any state to violate its safeguards obligation without consequences.

    • Amy (History)

      Thank you — my response to Anon:

      1. The OLD questions ca. 2003 were already resolved in Iran’s favor in 2008.

      2. There was no diversion of nuclear materials detected and the Iran-IAEA CSA specifies the procedure to take in case of disagreements: arbitration.

      Referral to UNSC has not worked.

      The UNSC has NO AUTHORITY to impose sanctions if there is no finding of a “threat to the peace” under Chapter 7 of the UN Charter.

      3. “Do they believe that Iran has already done everything it needs to do?” More or less, yes. They should probably explain why they are stockpiling (or plan to) more 20% LOW enriched Uranium than they need for the TRR — I think a valid answer may be that they are worried about their future fuel supply infrastructure for the TRR being bombed. Perhaps they are too shy to admit that. I really can’t say. They should be more clear though.

      But the CSA specifies the proper course in case of disagreements between Iran and IAEA outside of nuclear materials diversion. (see above)

      Iran is indeed providing about the level of cooperation it needs and is obliged to provide given that it has not ratified the A.P.

      I agree it would be lovely if Iran did ratify the A.P., but there is absolutely nothing you or the US or the UNSC can do about it, except offer Iran carrots to do so.

      Nothing legal, I mean.

      Clearly other things are being done, including illegal cyberwars and illegal assassinations and illegal and counterproductive sanctions.

      Thank you for the discussion.

    • anon (History)

      I’d like to explore the implications of Amy’s “no fault” view of safeguards non-compliance. Would she take the same approach if a country were found to be secretly producing and stockpiling high-enriched uranium. Would the country need only place that uranium and the production facilities? Or would the Security Council be justified in requiring the state to downblend or otherwise dispose of the HEU and dismantle its production facilities, finding them a threat to international peace and security?

      This is not an idle question. It is where we might have found ourselves today, had Iran’s clandestine enrichment program not been exposed in 2002.

      Amy also questions whether the Security Council acted legitimately in invoking Chapter VII of the UN Charter to impose sanctions on Iran, since the Council never explicitly stated that it it found a threat to international peace and security. Another view would be that the Council implicitly made such a finding when it invoked Chapter VII.

      My view is that all the arguments against the legitimacy of the actions by the IAEA Board of Governors and the UN Security Council are not only mistaken, but beside the point. At best, they are a distraction from the more important questions: how the international community should respond to Iran’s non-compliance, and what Iran should do to resolve the legitimate concerns raised by its non-compliance.

      So let’s focus on the important and valid point that Amy and others have raised, questioning the wisdom and effectiveness of the UN and other sanctions imposed on Iran, and of approach by the United States, Russia or others to dealing with Iran.

    • masoud (History)

      Anon,

      “Would she take the same approach if a country were found to be secretly producing and stockpiling high-enriched uranium. Would the country need only place that uranium and the production facilities? Or would the Security Council be justified in requiring the state to downblend or otherwise dispose of the HEU and dismantle its production facilities, finding them a threat to international peace and security?”

      Why would a member state ever be ‘found’ to be stockpiling HEU? This is a perfectly legitimate and legal action under the NPT and CSA, and even the AP. Iran could decide tomorrow it wanted to enrich to 99.9 percent, announce as much to the IAEA and start doing so at one of it’s already declared facilities. Would this be a ‘threat to international peace’ or ‘act of aggression’? That’s kind of ridiculous, seeing as how Iran’s unconditional right to do so is affirmed in the laws of nearly all current members of the UNSC, and certainly in the laws of every single last member of the P5. I believe alarmist phantasms, and unsubstantiated could-have-beens are a supremely ineffective vehicle for dealing with questions of international law and diplomacy. The main threat the world faces today is not Iranian ‘non-compliance’ but the hijacking of international institutions like the UNSC and the IAEA BOG by a cabal of marauding crusader countries.

    • Amy (History)

      Really anon? “My view is that all the arguments against the legitimacy of the actions by the IAEA Board of Governors and the UN Security Council are not only mistaken, but beside the point. At best, they are a distraction from the more important questions: how the international community should respond to Iran’s non-compliance, and what Iran should do to resolve the legitimate concerns raised by its non-compliance.”

      That is a surprising view to take given that this blog post is on how the US and Australia schemed to concoct a political case against Iran.

      In fact, the majority of nations — represented by the NAM — agree with Iran and disagree with the DG Amano’s overwrought reports.

      The IAEA has no business telling nations that they need to ratify the AP, stop enrichment, or that they are looking into its missile projects.

      The problem is that the IAEA and the UNSC has de-legitimized itself by concocting political cases against countries that are not friendly to the West+Australia. (Although I think Australia’s role as water-carrier for the US is long and inglorious.)

      The fundamental problem is that the IAEA DG continues to pretend that he has a right to treat Iran as if Iran has ratified the AP when Iran has not.

      Please do not get me wrong: it would be just lovely if Iran decided to ratify the A.P., but like Brazil and Argentina — you cannot force them to do so.

      You should also note that beginning on December 18, 2003, Iran began to carry out the provisions of the AP on a voluntary basis, until the Majles ratifies it.

      Even the European Union that had negotiated the implementation of the AP by Iran recognized its volunteer nature. Iran continued doing so until October 2005, when it declared to the IAEA that it would no longer abide by the AP. The reason was that the proposal that the European Union had presented to Iran in August 2005, according to which Iran was to receive significant economic concessions and security guarantees, was deemed by Iran to be totally inadequate.

      At the same time, angered by the European Union attitude toward Iran, the Majles never ratified the AP. Thus, unlike what the IAEA claims, Iran cannot be required to implement the AP.

      No sovereign nation has any obligation to sign and implement/ratify any international agreement that it does not deem it to be in its national interests.

      Similarly, the IAEA cannot force the US to ratify the CTBT.

      The IAEA can insist upon what it wants to insist upon.

      Iran has never committed to disclosure beyond those spelled out in its CSA. Iran or any other country has no obligation to make disclosure beyond that spelled out in its CSA.

      If the conditions necessary for special inspections are met, then the IAEA should feel free to call for one or more special inspections, as described (and limited) by the CSA.

      After any number of special inspections, the IAEA will still be able to make the statement that Iran has not implemented the AP (as is fully and we’ve seen unarguably its right). It will also, because Iran has not implemented the AP, continue to be able to make the statement: –-Iran has not provided the necessary cooperation to permit the Agency to confirm that all nuclear material in Iran is in peaceful activities–.

      And that’s OK. Iran does not have an obligation to “provide the necessary cooperation to permit the Agency to confirm that all nuclear material is in peaceful activities”, as Amano defines the terms.

      Remember, until the AP was created twenty years after the NPT, any IAEA director could (and did) make that statement about every single NPT signatory. Amano is using that, to arbitrarily harass Iran. This is because Amano, as wikileaks pointed out, is effectively in the US camp at the IAEA, and not impartial.

    • anon (History)

      Massound seems to have overlooked the word “secretly” in my hypothetical. That is, suppose a country that is required to have all its nuclear material under safeguards instead has produced a secret stockpile of HEU. I suspect most would consider that not only a material breach of NPT and IAEA safeguards obligations, but also a threat to international peace and security.

      Amy is wrong on at least two points.

      First, this blog post is not about “how the US and Australia schemed to concoct a political case against Iran.” That is how she chooses to misread Carlson’s paper. As I have explained, Carlson was trying to overcome the politicization was preventing the IAEA from fulfilling its legal responsibilities.

      Second, Iran does have an obligation to “provide the necessary cooperation to permit the Agency to confirm that all nuclear material is in peaceful activities.” The first three articles of Iran’s safeguards agreement establish such an obligation, within the admittedly limited tools available under that safeguards agreement.

      But UN Security Council Resolution 1737 expands on that obligation by deciding (OP 8) “that Iran shall provide such access and cooperation as the IAEA requests to be able to verify the suspension outlined in paragraph 2 and to resolve all outstanding issues, as identified in IAEA reports.”

  7. Mark Lincoln (History)

    The ‘Case’ was simple. The Bush administration did not drop the idea of invading Iran next until well after the 2006 elections. El Baradei refused to produce the intelligence that the Bushies wanted and so he had to go.

  8. yousaf (History)

    Carlson states that “A number of parties – including ElBaradei as well as the EU3 – share the view that referring Iran to the Security Council would achieve nothing, because of the prospect of an impasse amongst the P5, and therefore that negotiations with Iran should be attempted outside the Security Council. ”

    In fact, it has been worse than that: the referral has not only achieved nothing but has been actively counterproductive to getting Iranian cooperation.

    It has resulted in the additional ad hoc demand that Iran forgo enrichment in order to have the sanctions lifted.

    This is possibly why Iran feels it has little to gain by cooperating with the IAEA at this stage: even if it makes the IAEA happy, the UNSC – and various unilateral – sanctions still be fully in effect. So these sanctions are, in fact, a disincentive for Iran to cooperate with the IAEA: if they are going to be sanctioned by the Security Council anyway, why should they cooperate with the IAEA?

    The unilateral sanctions are even dumber.

    For instance, the US sanctions can only be lifted after the President certifies to Congress “that the government of Iran has: (1) released all political prisoners and detainees; (2) ceased its practices of violence and abuse of Iranian citizens engaging in peaceful political activity; (3) conducted a transparent investigation into the killings and abuse of peaceful political activists in Iran and prosecuted those responsible; and (4) made progress toward establishing an independent judiciary.”

    And – just in case those conditions were not unrealistically stringent and comprehensive – the President has to further certify that “the government of Iran has ceased supporting acts of international terrorism and no longer satisfies certain requirements for designation as a state sponsor of terrorism; and [that] Iran has ceased the pursuit, acquisition, and development of nuclear, biological, chemical, and ballistic weapons.”

    Many US allies, such as Bahrain and Saudi Arabia, could not satisfy all these conditions.

    So even if Iran were to stop all uranium enrichment and dump all their centrifuges into the Persian Gulf, shutter their nuclear program entirely, and re-task all their nuclear physicists to work in Chocolate factories, Iran would still be sanctioned by the US Congress.

    John Carlson may have had good intentions but the result has been a disaster and, quite possibly, a needless prelude to war — all over a non-existent nuclear weapons program.

  9. MarkoB (History)

    ElBaradei did as fine a job as could have been done in preventing the IAEA from being implicated in a US drive to place diplomatic and economic pressure on Iran using non-proliferation as a cover whilst at the same time trying to maintain the technical credibility of the Agency. John Carlson expressly called for the Agency to return to its “technical function” through, what is as clear as day, a change in the leadership of the Agency. In other words because ElBaradei refused to play ball with the largely political game being played against Iran, and so trying to prevent the IAEA becoming politicised so soon after Iraq, Carlson calls for his sacking. This Lewis tells us is not “scheming” but is just a reflection of what was widely stated of the DG at the time; that is, widely stated in Western capitals unlike in, like, the rest of the world. Carlson does not object to the IAEA being “politicised” so long as white guys are doing the politicising. Lewis in his post makes some affectionate comments about Australian culture. As an Australian I can readily see that it would have been more accurate if he outlined to his readers the great Aussie tradition of defending a mate come hell or high water.

  10. masoud (History)

    “there is no evidence that the … undeclared nuclear material and activities … were related to a nuclear weapons program”
    Carlson may find the above statement of fact by ElBaradei infuriating, but that does not make it untrue. There is to this day no evidence of a ‘weaponisation’ program, halted or otherwise. The oversights in reporting are easily attributable to the necessity of keeping the CIA infested Agency in the dark about where Iran is procuring its equipment. The fact that Iran even had to deal with such issues point to a fundamental failure of the IAEA, and a much more important issue in the world today.

    Carlson and company are also offended that the Board did not follow the letter of the law in immediately finding Iran in non-compliance for it’s untimely reporting of some experiments. Well according to paragraph A2 of article XII of the IAEA statute, the Board and the DG are also to make a finding of non-complicance, and report such to the Security Council and General Assembly, for failure to meet the Agency’s health and safety standards. For some reason, I don’t think these people will be striking the same tone of indignation over the get of jail free cards handed out to the US, Russia, Japan and Canada on this account. We don’t really have to wonder why.

    • Amy (History)

      Masoud,
      what it boils down to is this: the NPT effectively allows member states to stockpile enriched Uranium and therefore permits a latent nuclear weapons capability.

      Extremely sad, but extremely true FACT.

      Other, mostly NWSs, don’t like this implicit permission, of course — especially among enemies. e.g. It is OK for Brazil to do so. But not Iran. It is OK for Brazil to kick out inspectors under a cover story of proprietary commercial uranium enrichment research. Right.

      So, instead of going through the rough work of drafting a new treaty, the NWSs (aka UNSC) decide to abuse their powers and believe that select nations must abide by the A.P. and trump up and politicize the IAEA.

      All member states of the NPT are permitted a latent nuclear weapons capability. End of story.

    • anon (History)

      Apparently the false comparison between Brazil and Iran is very popular among Iran’s apologists. Brazil did not violate its safeguards agreement, and it did not “kick out inspectors under a cover story of commercial uranium enrichment research.”

  11. Amy (History)

    This is, e.g., why the IAEA is hemorrhaging credibility and should attempt to re-establish impartiality:

    http://www.cnsnews.com/news/article/leaked-cable-may-prompt-iran-demand-resi

    “Tehran has long accused International Atomic Energy Agency (IAEA) Director-General Yukiya Amano of lacking impartiality.

    Among the trove of classified documents leaked by WikiLeaks is one in which U.S. diplomats reported back to the State Department that Amano, shortly before assuming his post a year ago, had told a U.S. envoy “that he was solidly in the U.S. court on every key strategic decision, from high-level personnel appointments to the handling of Iran’s alleged nuclear weapons program.” Excerpts of the cable were quoted by the London Guardian.

    Amano told reporters at IAEA headquarters in Vienna on Thursday that it was “not appropriate” to comment on leaked documents..”

  12. kme (History)

    It seems that those who concur with Carlson’s view would simply rather that the political part of the process occur in the UNSC rather than the IAEA Board (where their position is stronger, natch) – in other words, we are simply haggling over the price.

  13. John Carlson (History)

    The central issue here is what constitutes noncompliance. Anon has noted the lack of a formal definition. Jeffrey cited an article by Pierre Goldschmidt presenting one view, arguing that the ROK and Egypt were in noncompliance. Readers might like to see my analysis at http://www.armscontrol.org/act/2009_5/Carlson

    • Sharif (History)

      John,
      since in 2003 Iran was not referred to the UNSC and was abiding by the A.P., why didn’t the IAEA order special inspections of anything suspicious?

      I thought the DNI said there is no weapons program post 2003?

      Anon,
      only once a state has ratified the AP can the IAEA have the capability to confirm the non-diversion of undeclared material. In the absence of the AP this is — fundamentally — not possible. The latest IAEA report says as much and this issue has been hashed out on the IAEA reports blog-post also.

    • anon (History)

      To respond to Sharif:

      My point has been that under a comprehensive safeguards agreement the IAEA has the responsibility to SEEK TO verify the absence the absence of undeclared nuclear activities, even though it lacks the tools to do that effectively. That’s why the Additional Protocol was needed.

      So I have no disagreement with the statement that the IAEA is not able to verify the absence of undeclared activities in Iran without an AP.

      But if the IAEA has specific questions about whether Iran has undeclared nuclear activities, it has a responsibility to pursue those and Iran has an obligation to cooperate. It is simply wrong to assert that Iran’s safeguards agreement deals only with declared activities.

      As for the question posed to John Carlson, here’s a link to an article of his: http://www.dfat.gov.au/asno/publications/inmm2005_special_inspections.pdf.

      I’ll offer my view that it is frustrating that the IAEA has not pursued special inspections in Iran when it had justification to do so. The IAEA has developed a distinct preference for requesting voluntary cooperation rather than invoking the its right to request a special inspection, but thereby has allowed that right to atrophy.

    • Sharif (History)

      Anon — actually, it is subtle point of logic but I assure you (having worked on the ground in the field for more than 2 decades) that the IAEA can never — ever — verify the nondiversion of undeclared materials in a nation with no A.P. ratified.

      It is both physically and logically impossible.

      In fact, even in those countries where they have the A.P. we cannot always verify the nondiversion of undeclared material.

      if you care to read the latest report you will that the assessment of verification is conditional on A.P.:

      “51. While the Agency continues to verify the non-diversion of declared nuclear material at the nuclear facilities and LOFs declared by Iran under its Safeguards Agreement, as Iran is not providing the necessary cooperation, ***including by not implementing its Additional Protocol***, the Agency is unable to provide credible assurance about the absence of undeclared nuclear material and activities in Iran, and therefore to conclude that all nuclear material in Iran is in peaceful activities.”

      Thus, no matter the level of Iranian cooperation, absent the A.P. the IAEA could not verify the nondiversion of undeclared materials. You can think of this statement in para 51 as a “CYA” type of statement: the IAEA is simply stating what it could do. This is not a non-compliance finding.

      But you are correct that the right course of action where there is anything suspicious is for the IAEA to kick of special inspections — something it failed to do. That is not the fault of the IRI.

      As I said, this has been resolved on Jeffrey’s other blog post already, ad nauseum. I suggest you go check those discussions for further clarification.

  14. Sharif (History)

    kme– that sounds about right to me. But I think in way it may have backfired: now the positions are more dug-in on both sides. Recall from 2003-5 Iran was voluntarily abiding by the A.P. — and beyond!

    I think more flexibility and oversight of Iran’s program could have occurred if Iran’s case did not go to the Security Council.

    Certainly, not ratifying the A.P. does not constitute non-compliance.

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