Arms Control Law | Dan Joyner |February 20, 2014
With the latest round of talks between the P5+1 and Iran in Vienna, there has been another resurgence of writing on the possible military dimensions (PMD) issue. Some good. Most uninformed and/or agenda-driven.
One theme that I’ve noticed running throughout a lot of the commentary on the PMD issue is speculation about the intentions behind whatever nuclear weapons related R&D work went on in Iran up until 2003. And this speculation is often presented more as a statement of fact than as speculation.
For example, Jeffrey Lewis in a piece in Foreign Policy a while ago said:
Left to its own devices, the 2007 NIE suggests, Iran would likely have acquired a nuclear weapon.
Similarly, in his piece just posted yesterday over at Arms Control Wonk, Aaron Stein said:
According to my research, Iran made the decision to proliferate sometime after March 1984, but before the end of 1985.
Here and elsewhere, observers are speculating about Iran’s intention in doing whatever weapons related R&D they were doing. They’re speculating that Iran’s intention was linear – i.e. to progress linearly from R&D straight onward to building and fielding a nuclear weapon.
I think it’s fallacious, and possibly specious to assume that this was or is Iran’s intention. And more to the point, it is pure, unevidenced speculation.
Don’t the facts of Iran’s R&D work with nuclear weapons – even accepting as facts those allegations that are controversial and that Iran has denied – equally or more persuasively support the hypothesis that Iran’s intent or purpose in carrying out that R&D work was to reach a level of technical and industrial capacity and knowledge at which Iran would be capable of producing a nuclear weapon, without necessarily taking the decision to build a nuclear weapon?
This is the concept of “nuclear hedging,” as introduced by Ariel Levite in his groundbreaking article in International Security in 2002. As Levite explained:
Nuclear hedging refers to a national strategy of maintaining, or at least appearing to maintain, a viable option for the relatively rapid acquisition of nuclear weapons, based on an indigenous technical capacity to produce them within a relatively short time frame ranging from several weeks to a few years.
In its most advanced form, nuclear hedging involves nuclear fuel–cycle facilities capable of producing fissionable materials (by way of uranium enrichment and/or plutonium separation), as well as the scientific and engineering expertise both to support them and to package their final product into a nuclear explosive charge.
Nuclear hedging is a strategy that may be adopted either during the process of developing a bomb or as part of the rollback process, as a way of retaining the option of restarting a weapons program that has been halted or reversed.
So again, don’t the facts of Iran’s R&D work on nuclear weapons pre-2003 better fit a nuclear hedging policy, than a policy of a linear march to a bomb? I mean it’s fairly clear that Iran’s impetus for doing the nuclear weapons R&D that it did during this period was its traumatic war with Iraq, which had included the use of chemical weapons against Iran, and the continued threat that Saddam Hussein posed to Iran. Doesn’t it make sense that, faced with this very real threat and history, Iran would want to develop the capacity to produce nuclear weapons to defend itself in the case of another war with Iraq? But again, just because it makes sense that they might want the capability to do this, does not mean that they would have ever exercised the option to build a nuclear weapon.
It’s also fairly clear that Iran stopped its nuclear weapons R&D work around 2003, due to the invasion of Iraq by the West – effectively removing the Iraqi threat – and to concerns that if its own weaponization R&D work were discovered, it might be next on the US hit list. To me, this is a persuasive narrative with bookends, and again fits perfectly with the idea that Iran achieved capability in some aspects of weaponization, and overall is keeping its options open with regard to the future, but has not made a decision to build a nuclear weapon. In short, that Iran’s case is perfectly described by the concept of nuclear hedging.
It is well known that there are a number of states in the world today who are nuclear weapons threshold states – who have all the necessary knowledge and the technical and industrial capabilities to build a nuclear weapon in short order. And the fact that they have not yet exercised that option, is proof of the prudence that a number of states see in achieving and maintain the capability to build a nuclear weapon, but choosing not to exercise that option.
So again, whatever nuclear weapons R&D work Iran did in the past, we do not know and should not speculate about their intent in doing that work and obtaining that knowledge and capability. Nor should we speculate, as so many do, what Iran’s intent is regarding the future. There is absolutely no evidence, and this conclusion is borne out by the conclusions of the US intelligence community, that Iran is currently seeking to build a nuclear bomb, or that they will seek to do so in the future.
Another thing that you always hear when particularly US government officials, but also IAEA officials, talk about the PMD issue, is that it’s necessary to include the resolution of the PMD issue in the negotiations between Iran and the P5+1/IAEA, because only through Iran’s transparency about this work, and admission of its having been done, can the international community begin to build trust with Iran, and confidence that Iran is not currently engaged in nuclear weapons related work.
But have you ever stopped to really think about that rationale, and whether it makes sense? How, in practical terms, will knowing the details about what Iran did in the past regarding weaponization R&D, give other states or the IAEA any meaningful confidence about what Iran is or is not doing now regarding weaponization R&D?
How will knowing the details of what Iran did in the past, and having Iran admit to them, actually increase other states’ ability to trust Iran now?
I confess I don’t see a real, practical connection between the propositions in either of these questions.
Don’t we already have the conclusions of the US intelligence community that, whatever weaponization R&D work was going on in Iran pre-2003, it has been halted since then, and that there is no evidence that Iran has made or will make a decision to re-start it or to build a nuclear weapon?
Isn’t that exactly what this rationale says we need to know about Iran’s current program?
So how does knowing more about the details of what happened 15-20 years ago increase our confidence about what is going on now, or our trust in Iran about the future? To me it doesn’t make sense logically.
To me it appears that IAEA/Western insistence on having the PMD issue as part of the P5+1/IAEA negotiations with Iran, is more persuasively explained as a witch hunt for past truth and a concession of embarrassment for Iran which, while perhaps cathartic and a moral victory for the West, really serves no practical purpose for the present or future. It strikes me as more of a truth and reconciliation mission, which I think Iran understandably has no interest in. As Mark Hibbs has explained:
On February 3, Iran’s Foreign Minister, Javad Zarif, visited the German Council of Foreign Relations in Berlin. Zarif explained to us that Iran has no aim or interest in having nuclear weapons. In fact, he said that the credibility of Iran’s regime was founded upon Iran not having such an ambition or interest. That’s the crux. If the credibility of Iran’s regime rests on its disavowal of nuclear arms, then any admission by Iran to the IAEA that the Islamic Republic of Iran has been engaged in nuclear weapons-related research or experiments–which prima facie would have to be reported to the Board of Governors– would severely damage the regime’s reputation. Shia theology might imply that nuclear weapons are sinful, but the IAEA’s dossier poses a potential major credibility problem. For Iran at any point to admit that it worked on nuclear weapons would be orders or magnitude more significant than Iran admitting, as it did in 2003, to having failed to declare to the IAEA a flurry of nuclear activities which could be justified by Iran’s peaceful nuclear program.
So there is zero likelihood that Iran will ever sign a confession detailing nuclear weapons related R&D that may have gone on pre-2003, and for the West and the IAEA to insist on such a confession is a sure way to guarantee the failure of the current diplomatic effort with Iran.
I was having a conversation earlier today with a colleague, and he raised an insightful question about the purpose of international law, and how it might shed some light on how this issue should be dealt with in the context of the current negotiations between Iran and the West.
Most of the corpus of international law, including the sources of nuclear nonproliferation law such as the NPT and IAEA safeguards agreements, is most analogous to domestic tort and contract law, which focus on identifying breaches of law as between parties, and ensuring that the party responsible for the breach makes the damaged party whole. As long as an extra-judicial settlement of the issue can be reached among the parties, in these areas the law is generally happy to approve of that settlement, and allow the parties to move forward on the basis of that settlement. If that settlement can be reached – and it is often necessary or at least useful in order for such a settlement to be reached – without dragging into public view all of the sins of the parties against each other, and requiring a confession of guilt by the party responsible for the breach, the law will recognize the settlement in the interest of moving forward.
The exception to this paradigm occurs in criminal law, which is purposed in a clear explication of the facts of the breach of law, in order to establish the guilt of the responsible party, and to mete out an appropriate punishment for that party. Revelation of the facts of the case is also considered necessary both for the sake of the victim, as well as for the sake of broader society. In criminal law there typically is no such thing as a non-judicial settlement between the perpetrator and the victim that the law will recognize. A judicial finding of guilt or innocence is necessary for the disposition of the case.
In the context of negotiations between Iran and the West/IAEA over Iran’s nuclear program, I think it is clear that we are and should remain within the first, contract/tort law paradigm, and that we should not allow considerations more fitting for a criminal law paradigm to interfere – and they will interfere – in the peaceful resolution of this dispute, which can then allow the parties to move forward.es