By Fiona Simpson, February 10, 2008
— Statement attributed to Soviet Defense Minister Dimitriy Ustinov at a cabinet meeting immediately following Israel’s 1981 attack on Iraq’s Osirak nuclear reactor.
“The Israelis are already attacking our allies. It is time to teach them a lesson or else Syria will be next.”
— Statement attributed to Soviet Defense Minister Dimitriy Ustinov at a cabinet meeting immediately following Israel’s 1981 attack on Iraq’s Osirak nuclear reactor.
Several months have passed since Israel attacked what was rumored to be a partially constructed nuclear facility in Syria. The facility–allegedly undertaken with North Korean assistance–has remained a subject of speculation, its existence officially unconfirmed. Israel, the United States, and Syria (apart from a letter of protest to the U.N. Security Council and U.N. secretary-general) have remained nearly silent on the subject. Save for North Korea, the same holds true for the rest of the international community.
Although unconfirmed, the rumors have started a discussion about the International Atomic Energy Agency (IAEA) and Syria’s obligation to the IAEA under its comprehensive safeguards agreement, concluded in accordance with its obligations under Article III of the Nuclear Non-Proliferation Treaty (NPT), to which Syria belongs. Other related questions have been asked regarding whether the IAEA has the authority to dispatch inspectors to Syria on the basis of the allegations.
In 1992, in an attempt to respond to the discovery of Iraq’s clandestine nuclear weapons program, then-IAEA Director General Hans Blix called for the safeguards system to possess more “teeth.” As part of this effort, at a February 1992 meeting, the IAEA Board of Governors reaffirmed the IAEA’s right to conduct special inspections under the comprehensive safeguards agreement to be concluded by all non-nuclear weapon states belonging to the NPT. At the same meeting, the board expanded the requirement on the provision of nuclear facility design information beyond that called for under paragraph 42 of INFCIRC/153, which required information to be provided “as early as possible before nuclear material is introduced into a new facility.” 1
Instead, the board called for revisions to existing subsidiary arrangements to be incorporated into both new and old safeguard agreements. 2 These revisions would oblige states with comprehensive safeguard agreements in force to provide preliminary information to the IAEA as soon as a decision has been made to construct, authorize to construct, or modify a facility. Finally, in an interesting coincidence, the February 1992 board session also approved the text of the comprehensive safeguards agreement for Syria, which would enter into force on May 18, 1992.
The potential implications of the raid–i.e., the possibility that Syria had quietly been constructing a nuclear facility–brought all three of these board decisions into the spotlight. By the end of 1997, Richard Hooper, the then-director of the Division of Concepts and Planning in the IAEA’s Department of Safeguards, wrote in the IAEA Bulletin, “The early provision of design information now is incorporated in all new and most existing subsidiary arrangements.” Syria, whose safeguards agreement entered into force after the board decision to revise the subsidiary arrangements, would therefore need to inform the IAEA as soon as it decided to construct a facility, if such construction was underway. 3
In order to clarify whether the allegations against Syria had any basis, the IAEA secretariat (i.e., the director general) does possess the authority to invoke the special inspections component of INFCIRC/153. According to this document, the IAEA is empowered to make special inspections to either verify the information contained in special reports (not applicable in this case) or “if the agency considers that information made available by the state, including explanations from the state and information obtained from routine inspections, is not adequate for the agency to fulfill its responsibilities under the agreement.” 4 Those responsibilities are defined at the document’s outset: “. . . to ensure that safeguards will be applied, in accordance with the terms of the agreement, on all source and special fissionable material in all peaceful nuclear activities within the territory of the state, under its jurisdiction, or carried out under its control anywhere for the exclusive purpose of verifying that such material is not diverted to nuclear weapons or other nuclear explosive devices.” 5 [Emphasis added.]
The controversy here lies in the language referring to the IAEA’s responsibilities as the application of safeguards to nuclear material only. (Notably, the NPT’s language is slightly broader, referring to the goal of safeguards as preventing the diversion of “nuclear energy” from peaceful uses.) However, if evidence was presented to the IAEA indicating that Syria was building a facility and hadn’t informed the IAEA of its decision, questions would invariably arise as to whether there could be confidence that safeguards were being applied to all nuclear material within the state. Above all, it’s the phrase “if the agency considers” that’s most significant, as it gives the IAEA, on paper at least, a reasonable amount of latitude. According to the agreement, the authority to invoke special inspections follows from the IAEA’s perception of whether or not it can carry out its safeguards mandate; the justification for special inspections presupposes a relatively flexible interpretation thereof.
But, in practice, the invocation and the implications of special inspections are more complicated, with the IAEA obliged to balance its safeguards mandate against the sovereignty and rights of its member states. The IAEA has only formally invoked special inspections twice–in 1992, at Romania’s request to clear up outstanding discrepancies that occurred under Nicolae Ceausescu’s regime, and a year later, when the IAEA became aware of inaccuracies in North Korea’s initial report, due in part to information provided by the United States. North Korea refused to allow the IAEA to carry out the special inspections, which the board had approved, leading to a report to the U.N. Security Council on North Korean noncompliance.
Against this backdrop, it’s not surprising that the IAEA director general stated in the case of the raid against Syria, “If countries have information that the country is working on a nuclear-related program, they should come to us. We have the authority to go out and investigate.” As noted, satellite photos appear to show a building similar to North Korea’s 5-megawatt nuclear reactor at Yongbyon. 6 But those photographs are subject to interpretation, and others who have examined the images consider them inconsistent with the allegations. In any event, it’s highly unlikely that the IAEA would have invoked special inspections on the basis of media reports, allegations, and a quickly razed site (on which new, and likely non-nuclear, construction is now underway)–not simply because its credibility could be damaged if nothing were discovered, but because of the IAEA’s sensitivity to antagonizing some member states by dispatching or seeking to dispatch inspectors on the basis of what remain allegations by others. 7
More to the point, under the safeguards agreement, any disagreement concerning the need for additional access between the IAEA and the state entitles the state in question (in this case, Syria) to request that the board consider it. 8 The board’s member states, wary of inspections of the kind indicated above (and many of them historically touchy about the use of outside intelligence by the secretariat), tend to stay conservative on such matters in the best of times, let alone at a time when political sensitivities, such as those that currently exist over the question of Iran’s nuclear program, are high.
Moreover, while the board reaffirmed the IAEA’s right to conduct special inspections in 1992, it added that such inspections should be invoked “rarely.” A rejected request for special inspections would be worse for the IAEA’s credibility than special inspections that had never been invoked. In addition, the memories of Israel’s 1981 raid on Iraq’s nearly completed Osirak reactor and more importantly, its aftermath, shouldn’t be overlooked as a factor in the IAEA’s somewhat diffident response to recent events.
As opposed to its 2007 raid on Syria, Israel conducted a public campaign to explain why it bombed Osirak. The day after the attack, it presented a letter to the president of the U.N. Security Council, outlining its reasoning–namely, Iraq intended to use its NPT membership as a cover to develop nuclear weapons and that IAEA safeguards weren’t adequate to detect such activity. Within months, the Israeli government released a publication that further detailed its thinking. 9 Outside of Israel, an emergency meeting of the Arab League Council was convened in Baghdad, which concluded with a resolution calling upon the United Nations to impose sanctions on Israel. Unlike the 2007 conference, in which the raid on Syria went unmentioned, the 1981 IAEA General Conference became a forum for member states to express their anger with Israel and ended with a successful vote for the IAEA to suspend all technical assistance to Israel and consider suspending Israel’s IAEA membership rights unless it placed all its facilities under IAEA safeguards. In an address to the U.N. Security Council on the subject, then-IAEA Director General Sigvard Eklund labeled the attack on Osirak as an attack on the IAEA’s safeguards system–a viewpoint Washington directly rebutted during the 1981 General Conference. 10
A year later at the General Conference, a narrowly approved vote on Israel’s credentials took place. In response, the United States, Britain, and several other Western delegations walked out with the U.S. delegation head stating, “This pattern of abusing the U.N. system to carry on political vendettas is corrosively dangerous.” 11 Washington then suspended its IAEA membership for five months–a suspension that entailed a freeze on U.S. funding to the IAEA. Two months after the U.S. walkout, Blix, then the new IAEA director general, reportedly said that if the suspension of U.S. participation stretched into the following year, “it could cripple our operations.” 12
Thus, the fact that the reaction to the Syrian raid has been far more cautious isn’t simply because the raid remains publicly unclear; the IAEA’s reluctance to push the issue onto the board’s agenda also reflects an understanding of how costly this could prove to be–both figuratively and literally. Therefore, while the IAEA has the authority to invoke special inspections in the context of the raid on Syria, the chances of it acting upon that authority are slim and will remain so in the absence of concrete evidence. Syria’s decision to raze the bombed building hasn’t helped matters for the IAEA in this regard.
At first glance, it may seem as if the raid on Syria provided an opportunity for the IAEA secretariat to allay concerns by invoking special inspections and, in so doing, testing the board on its 1992 proviso that such inspections were to be rarely used. But in the wake of the international community’s silence, the allegations of a partially constructed nuclear facility in Syria remain confined to media reports, which often quote unnamed sources. And the lack of concrete evidence to bring before the board increases the likelihood that such a move would backfire, resulting in the board rejecting the request for inspections and, like the Osirak case, raising the inevitable ire of some member states and increasing the politicization in the board. Therefore, Israel’s raid on Syria doesn’t represent the best opportunity to test the board on what the 1992 reaffirmation of the IAEA’s right to conduct special inspections means in practice.
However, it does raise the question of the IAEA’s practical authority in this regard. As of January 22, only 86 states have an Additional Protocol to their NPT safeguards agreement in force. The Additional Protocol, which greatly expands the IAEA’s rights of access to information and locations in a state, allows the IAEA to provide credible assurance that there aren’t undeclared nuclear materials or activities in a state, and not simply regarding the non-diversion of declared nuclear material. Clearly, special inspections wouldn’t be viable, practical, or a politically feasible quasi-substitution for the tools and access granted under the Additional Protocol, particularly since the Board of Governors still formally considers the Additional Protocol a voluntary undertaking.
But without an Additional Protocol, as its director general likes to point out, the IAEA cannot provide credible assurance about undeclared nuclear material or activities within a state. Moreover, although required under the NPT, 30 states (also as of January 22) haven’t brought even the basic safeguards agreement into force. As international concerns regarding nuclear black markets and other clandestine nuclear activities increase, and until the Additional Protocol is universal and mandatory–a controversial subject itself–it may be that questions similar to those currently being asked about Syria will arise–whether or not in the wake of some kind preemptive military action. While the vagueness of the allegations about Syria don’t provide the best foundation upon which to do so, at some point, the IAEA and some of its member states may eventually need to be prepared to push its board on the interpretation of the IAEA’s right to conduct special inspections. The raid on Syria provides them with an opportunity to start thinking carefully about this now.
1The text of INFCIRC/153 (corrected) provides the basis for negotiating safeguards agreements between the International Atomic Energy Agency (IAEA) and non-nuclear weapons states parties to the Nuclear Non-Proliferation Treaty (NPT); “The Structure and Content of Agreements Between the Agency and States Required in Connection with the Treaty on the Nonproliferation of Nuclear Weapons,” INFCIRC/153 (corrected), Vienna, 1972.
2Subsidiary arrangements to safeguards agreements are the “document containing the technical and administrative procedures for specifying how the provisions laid down in a safeguards agreement are to be applied.” IAEA Safeguards Glossary, 2001 Edition, Section 1.26, IAEA, 2001, pp. 8-9.
3The specifics of safeguards agreements and subsidiary arrangements concluded between the IAEA and the Syria aren’t public. However, Syria’s comprehensive safeguards agreement is understood to incorporate the revisions called for by the Board to Code 3.1 of its subsidiary arrangements (i.e., the early provision of design information). See also David Albright, Paul Brannan, and Jacqueline Shire, “Syria Update: Suspected Reactor Site Dismantled,” Institute for Science and International Security (ISIS), October 25, 2007. Syria hasn’t concluded an Additional Protocol to its safeguards agreement, which would have allowed the IAEA wider access. Like other states of the region, it has traditionally linked the conclusion of an Additional Protocol with Israel’s accession to the NPT and the establishment of a Mideast nuclear-weapon-free zone.
4Special reports are made if any unusual incident or circumstances lead the state to believe that there is or may have been a loss of nuclear material in excess of specified limits or if changed circumstances have made the unauthorized removal of nuclear material possible; See INFCIRC/153 (corr.), Part II, paragraph 73(b).
5Ibid., Part I, paragraph 2.
6Albright, Brannan, and Shire, “Syria Update”.
7William J. Broad, “Syria Rebuilding on Sites Destroyed by Israeli Bombs,” New York Times, January 12, 2008.
8INFCIRC/153 (corr.), Part II, paragraphs 77 and 21.
9“The Iraqi Nuclear Threat: Why Israel Had to Act,” (Jerusalem: Government of Israel, 1981). The report discussed the Iraqi hostility to Israel, the nuclear threat it would eventually pose, and the perceived inadequacy of the safeguards as they would be applied to the reactor.
10Sigvard Eklund, “Address to the U.N. Security Council Meeting,” June 19, 1981, reprinted in “Peaceful Nuclear Development Must Continue,” IAEA Bulletin, December 1981, pp. 4-5. Eklund claimed, “From a point of principle, one can only conclude that it is the agency’s safeguards system which has also been attacked”; The U.S. head of delegation, Deputy Energy Secretary Kenneth Davis asserted, “The United States Government . . . cannot support the view that the Israeli action constituted an attack on the agency and its safeguards regime or that it caused damage to that regime.” See “Statement by U.S. Representative Kenneth Davis to the General Conference of the International Atomic Energy Agency: Resolution Condemning Israel for Attack on Iraqi Nuclear Facility,” Documents on Disarmament, (New York: United Nations, 1981), p. 454.
11Henry Giniger, Milt Freudenheim, and Katherine J. Roberts, “The World in Summary; Mideast Politics; In Atomic Forum,” New York Times, September 26, 1982. The report quotes Davis.
12Judith Miller, “Head of World Arms Agency Sees Peril In Curbs,” New York Times, November 17, 1982.
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