Australia/Israel & Jewish Affairs Council

Questions about Iran nuclear deal inspection measures

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Update from AIJAC

July 24, 2015
Number 07/15 #05

As the debate about the JCPOA - the deal between Iran and the P5+1 powers on Iran's nuclear program - continues, one key area of dispute on which discussion has centred is the effectiveness of the inspection mechanisms put in place to confirm Iranian compliance - especially as it relates to future allegations of Iranian clandestine nuclear work at an undeclared nuclear site.

We lead with a New York Times story quoting a number of experienced experts on nuclear inspections who are raising questions about the inspection arrangements - which allow Iran to delay any inspections by 24 days or more after an official claim is made about suspicious activity at a site by International Atomic Energy Agency (IAEA) inspectors. Among those quoted questioning the US Administration's claim that 24 days is sufficiently soon to detect any cheating even if Iran attempts to clean up the site are: Former deputy IAEA head Olli Heinonen, David Albright, the president of the Institute for Science and International Security and a former weapons inspector in Iraq, and Robert J. Einhorn, a former State Department official who served on the American delegation to the Iran nuclear talks. They all suggest that there are significant types of illegal nuclear activities by Iran which would very likely be undetectable in the face of a 24-day Iranian cleanup, and Heinonen suggests this may even include work where enrichment of uranium was involved, despite claims to the contrary from the Administration. For this important summary from leading authorities of some views on the 24 day inspection system's vulnerabilities, CLICK HERE.

Next up are American analysts Hillel Fradkin and Lewis Libby who argue strongly that despite the widely-discussed timeline of 24 days, there are loopholes in the agreement that actually mean Iran will be able to stretch out the process, meaning it could be three months or more before inspectors are allowed in. They note there are numerous points where Iran can interpret the agreement as saying the various "clocks" on the various phases of the dispute resolution process supposed to lead to inspections don't start until Iran has done various things which are likely to take time, such as gathering information to provide “explanations” to resolve IAEA concerns, or appointing its representative to an "advisory board" on the dispute. For their full explanation of how the process of getting to inspection of a suspicious site could actually take 63 days, 78 days or even longer, CLICK HERE.

Finally, veteran Washington insider Dr. Steve Rosen takes on some Administration claims about how the "snapback" of sanctions would work in the event Iran refuses inspections or clear evidence of cheating is found. Rosen notes that the Committee that would have to recommend such "snapback" would require, to get a majority vote in the face of almost certain Chinese and Russian opposition, votes from all of the US, UK, France, Germany and the EU representative - the last of whom would probably need to have unanimous support from all 28 EU members to vote yes under EU rules. Not only does this seem grossly unlikely, Rosen also notes that given an expected explosion of the EU trade with Iran, "European governments will be under great pressure to keep the conveyor belt of commerce with Iran lubricated." For his complete argument, CLICK HERE. Similarly, law professor and columnist Stephen L. Carter argues that provisions of the deal make it likely that absolutely no penalty, such as the  "snapback" of sanctions, will be imposed it Iran is caught cheating or blocking inspections. 

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Verification Process in Iran Deal Is Questioned by Some Experts

WASHINGTON — The Obama administration’s claim that the Iran nuclear accord provides for airtight verification procedures is coming under challenge from nuclear experts with long experience in monitoring Tehran’s program.

Energy Secretary Ernest J. Moniz has insisted that Iran would not be able to hide traces of any illicit nuclear work before inspectors gain access to a suspicious site. But several experts, including a former high-ranking official at the International Atomic Energy Agency, said a provision that gives Iran up to 24 days to grant access to inspectors might enable it to escape detection.

Olli Heinonen, a former deputy director of the agency, said in an interview that while “it is clear that a facility of sizable scale cannot simply be erased in three weeks’ time without leaving traces,” the more likely risk is that the Iranians would pursue smaller-scale but still important nuclear work, such as manufacturing uranium components for a nuclear weapon.

“A 24-day adjudicated timeline reduces detection probabilities exactly where the system is weakest: detecting undeclared facilities and materials,” he said.

David Albright, the president of the Institute for Science and International Security and a former weapons inspector in Iraq, also said that three weeks might be ample time for the Iranians to dispose of any evidence of prohibited nuclear work. Among the possibilities, he said, were experiments with high explosives that could be used to trigger a nuclear weapon, or the construction of a small plant to make centrifuges.

“If it is on a small scale, they may be able to clear it out in 24 days,” Mr. Albright said in a telephone interview. “They are practiced at cheating. You can’t count on them to make a mistake.”

Mr. Moniz, Secretary of State John Kerry and Treasury Secretary Jacob J. Lew were at the Capitol on Wednesday afternoon for separate classified briefings to the entire House and entire Senate, with public appearances scheduled for Thursday before the Senate Foreign Relations Committee.

They are likely to be questioned about a recent statement by Iran’s supreme leader, Ayatollah Ali Khamenei, that Tehran would not discuss regional issues with an “arrogant” United States. Mr. Kerry called those remarks “very disturbing” in an interview on Monday on the news channel Al Arabiya.

But Senator Bob Corker of Tennessee, the Foreign Relations Committee chairman, said the cabinet secretaries would be grilled on the nuclear issues, including on how the accord would be monitored.

Inspectors’ access to sites in Iran was one of the hardest-fought issues in the closed nuclear talks. In Tehran, Iranian officials initially declared that military sites could not be inspected. And inside the negotiating room in Vienna, Iranian officials insisted that if the international inspectors wanted to visit a suspicious site, the atomic energy agency should provide months of notice.

Administration officials said the procedure that they worked out in Vienna ensured that Iran could not endlessly drag out the process and made it clear that military sites were not off limits.

“The 24-day review process provides an extra layer of assurance that Iran cannot stonewall the agency’s access to suspect sites,” said Kelsey Davenport, who monitored the negotiations for the Arms Control Association.

But the debate among experts, including some who support the accord, is whether 24 days is too long.

“ ‘No notice’ inspections were clearly not achievable, but a limit shorter than 24 days would have been desirable,” said Robert J. Einhorn, a former State Department official who served on the American delegation to the Iran nuclear talks from 2009 to 2013.

“While evidence of some illicit activity — construction of a covert enrichment facility or work with nuclear materials — would be difficult or impossible to hide or remove in 24 days, incriminating evidence of lesser activities probably could be removed,” Mr. Einhorn said. “But it is probably the case that the greater the significance of a covert activity, the more difficult it will be to remove evidence of it in 24 days.”

Under the terms of the accord, Iran would have 14 days to either grant access to international inspectors who request access to a suspicious site or find another way to satisfy the atomic energy agency’s concerns.

If Iran and the agency could not come to terms, the matter would be referred to an eight-member commission made up of the United States, Britain, France, Germany, Russia, China, Iran and a representative of the European Union. That panel would have another week to decide whether access should be granted.

The makeup of the committee makes it very likely that the United States could come up with four additional votes to form a majority supporting the demand for access. If Iran relented, it would have three more days to provide access to the inspectors, for a total of 24 days. If it refused, the matter would be referred to the United Nations Security Council, where economic sanctions could be reimposed.

Mr. Corker said his concerns went beyond those expressed by the weapons inspectors. The 24-day notice may actually understate the time Iran would have to prepare for inspections, he said, because under the accord, site visits would be announced in two stages, with the first being notice to Iran detailing why inspectors were suspicious of a site.

“So you’re signaling to Iran what you’re looking for,” he said. “It’s not just 24 days.”

Further complicating the picture, Mr. Corker said, only countries with diplomatic relations with Iran would be able to send in inspectors, “so all this great expertise we have in this country will not be usable.”

“You’re going to have a lot of questions about the verification process,” Mr. Corker said.

Energy Department officials assert that 24 days is not too long to wait for an inspection, because Iran would not be able to scrub away all signs of prohibited work.

“If they actually tested any centrifuges or did uranium conversion or did actual production of uranium metals, these types of activities generate contamination,” said an Energy Department official, who spoke on the condition of anonymity to discuss the negotiations. “That is a very difficult thing to clean up. It is like trying to get all the grease off your car and your car has 100,000 miles on it.”

And while Iran might initially be able to conceal its work on high-explosive triggers for a nuclear weapon, the official said it would be hard for the Iranians to hide their efforts as that work progressed and they started using uranium in the tests. The official said that there would be “uranium spread all over the place.”

Mr. Heinonen, however, said there had been cases in which Iran had successfully hidden evidence of illicit nuclear work even when nuclear enrichment was involved.

When the atomic energy agency sought to inspect the Kalaye Electric Company site in Iran in 2003 to check whether the Iranians were using centrifuges that they had obtained from Pakistan, the Iranians kept inspectors at bay while they spent weeks removing the equipment and renovating the building where it had been kept.

“Certain parts of the installation were renovated, leaving no trace of enrichment activities that had taken place,” Mr. Heinonen said. “However, nonrenovated parts had uranium in the 2003 contamination, which raised concerns.”

As impressive as the Iranians’ efforts at concealment were then, Mr. Heinonen said they would be better prepared to remove the evidence of illicit work if they decided to cheat on the accord.

“There will likely be plans to be executed promptly to avoid getting caught,” he said.

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Iran Inspections in 24 Days? Not Even Close

 

Iran can easily stretch out the inspection of suspect nuclear sites for three months or more.


The Obama administration assures Americans that the Iran deal grants access within 24 days to undeclared but suspected Iranian nuclear sites. But that’s hardly how a recalcitrant Iran is likely to interpret the deal. A close examination of the Joint Comprehensive Plan of Action released by the Obama administration reveals that its terms permit Iran to hold inspectors at bay for months, likely three or more.

Paragraphs 74 to 78 govern the International Atomic Energy Agency’s access to suspect sites. First, the IAEA tells Iran “the basis” of its concerns about a particular location, requesting clarification. At this point Iran will know where the IAEA is headed. Iran then provides the IAEA with “explanations” to resolve IAEA concerns. This stage has no time limit.

Opportunities for delay abound. Iran will presumably want to know what prompted the IAEA’s concern. The suspect site identified by the IAEA is likely to be remote, and Iran will no doubt say that it must gather skilled people and equipment to responsibly allay IAEA concerns. Iran may offer explanations in stages, seeking IAEA clarifications before “completing” its response. That could take a while.

Only if Iran’s “explanations do not resolve the IAEA’s concerns” may the IAEA then “request access” to the suspect site. Oddly, the agreement doesn’t specify who judges whether the explanations resolve concerns. If Iran claims that it has a say in the matter, the process may stall here. Assuming Iran grants that the IAEA can be the judge, might Iran claim that the “great Satan” improperly influenced IAEA conclusions? Let’s assume that Tehran won’t do that.

Now the IAEA must provide written reasons for the request and “make available relevant information.” Let’s assume that even though the IAEA may resist revealing the secret sources or technical means that prompted its suspicions, Iran acknowledges that a proper request has been supplied.

Only then do the supposed 24 days begin to run. First, Iran may propose, and the IAEA must consider, alternative means of resolving concerns. This may take 14 days. Absent satisfactory “arrangements,” a new period begins.

During this period Iran, “in consultation with” the Joint Commission, will “resolve” the IAEA concerns “through necessary means agreed between Iran and the IAEA.” The Joint Commission includes China, France, Germany, Russia, the U.K, the U.S., the European Union and, of course, Iran. Not exactly a wieldy bunch.

The Iranians will likely claim that “consultation” with the Joint Commission doesn’t bind Tehran, just as the U.S. president isn’t bound by consultations with Congress. The agreement says the consultation process will not exceed seven days, but Iran can point out that the nuclear deal doesn’t specify when Iran and the IAEA must reach agreement and “resolve” IAEA concerns.

In the absence of Iran-IAEA agreement, a majority of the Joint Commission has seven days to “advise” on the “necessary means” to resolve the matter. Iran may fairly argue that the commission’s right to “advise” is not the same as a right to “determine” the “necessary means.” Lastly, the agreement provides that “Iran would implement the necessary means within 3 additional days.” But what “necessary means” are these? As noted, the agreement refers to “necessary means agreed between Iran and the IAEA.” So these additional three days don’t even begin until an agreement is reached.

Now what? Well, the U.S. may take a “Dispute” to the Joint Commission, on which Iran sits, which has 15 days to resolve the issue. Parties may or may not invoke a similar 15 days for foreign ministers to act. Parties may also request a nonbinding opinion within 15 days from an advisory board consisting of three members, one appointed by Iran, one by the complaining country and “a third independent member.”

But Iran may argue that nothing in the nuclear deal specifies how quickly a country must appoint its advisory-board member or even how the “independent member” is selected. In short, this stage may take at least 30 days and possibly 45 of consideration at the different levels, but Iran may argue that the last 15 days don’t start until an advisory board has been duly formed. Then we get another five days of Joint Commission deliberation, before a disappointed U.S. or other commission member seeking IAEA inspections can hobble off to the United Nations seeking resolutions reimposing sanctions.

In short, as Iran is free to interpret the agreement, 63 or even 78 days may pass, plus three potentially lengthy periods that Iran can stretch out: One of “explanations” before the clock starts, one to agree on necessary means and “resolve concerns,” and one for advisory-board selection near the end.

So from the moment the IAEA first tips its hand about what it wants to inspect, likely three or more months may pass. All along, the Joint Commission is required to act in “good faith,” and to make only “minimum necessary” requests limited to verification, not “interference.” Tehran could also cite these terms to challenge particular requests.

The description of this process is based on the English-language text of the nuclear agreement. The text lacks a provision that it is the entire agreement, so Iran may claim support in supposed side agreements or statements during negotiations.

Announcing this “comprehensive, long-term” deal, President Obama quoted President Kennedy’s 1961 call for negotiations with the Soviets. Kennedy reached two notable nuclear agreements. Mr. Obama didn’t mention that within a decade of Kennedy’s 1963 Limited Test Ban Treaty, Soviet nuclear forces—once a fraction of America’s—were at parity or had surpassed ours.

During the 1962 Cuban Missile Crisis, Kennedy reached secret agreements—undisclosed to Americans for decades—not to invade Cuba and to withdraw U.S. weapons from Turkey. By invoking Kennedy was President Obama signaling there is more to this “long-term” deal than we know?

He is a subtle man.

Mr. Fradkin is director of the Center on Islam, Democracy and the Future of the Muslim World at the Hudson Institute. Mr. Libby, a senior vice president at the Hudson Institute, served in the George W. Bush administration as assistant to the president and assistant to the vice president for national security affairs.

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Obama gave Europe control of the Iran sanctions ‘snap back’ mechanism

By Steven Rosen

Washington Times, Monday, July 20, 2015

"If Iran violates the deal, all of these sanctions will snap back into place," President Obama said in his White House statement on the nuclear agreement. He added, "we've built in a snap-back provision so we don't have to go through lengthy negotiations at the U.N. to put the sanctions right back in place."

But any inspections at Iranian military facilities to which Iran objects, and the "snap-back" re-imposition of United Nations sanctions would require the United States government to win the unanimous support of Germany, the United Kingdom, France, and the High Representative of the European Union for Foreign Affairs and Security Policy--ALL of them. This would be necessary to have the five votes required under the agreement's Dispute Resolution Mechanism to override objections from Iran, Russia, and China. (See Articles 36-37 and Annex I Article 78). And, under the Treaty of Lisbon rules controlling the EU's "Common Foreign and Security Policy," key decisions on the CFSP require unanimous approval by ALL 28 MEMBERS of the European Union.

It may be true that "No one country could block a snap-back of sanctions," as Secretary of Energy Ernest Moniz said, but no one country--not even the United States--could re-impose them either unless all of Europe went along.

Sanctions on Iran were always less popular in Europe than the United States, not least because Germany and other members of the EU were the principal trading partners of Iran before the nuclear sanctions were imposed. The first U.S. sanctions were imposed by President Clinton in 1995 and by Congress in 1996, but they were fiercely opposed by European governments and companies. Europe did not impose its own sanctions on Iran until fifteen years later, in 2010.

And now that a new Gold Rush of European companies wooing Iran is underway, the fabric of European dependency on Iran contracts is being rewoven. Germany may well return to being Iran's largest trading partner, followed by France and the U.K. Until 2010, Germany had 12,000 full-time trade representatives in Tehran, representing companies like Linde, BASF, Lurgi, Krupp, Siemens, ZF Friedrichshafen, Mercedes, Volkswagen and MAN. Germany many again become Iran's most important supplier of machines, equipment and technologies, and the rest of Europe won't be far behind.

European governments will be under great pressure to keep the conveyor belt of commerce with Iran lubricated, not to look for Iranian violations and punish them with profit-busting sanctions all over again. The spin-meisters may label it "snap back," but that's the last thing that's going to happen in the event of an Iranian violation.

President Obama keeps telling his critics, "Read the agreement!" But when you do, you discover these rotten provisions all over the place, because it is full of holes. Obama's negotiators were some of the smartest people in Washington. But they began with the instruction, "Go negotiate the best agreement that Iran will sign." From the outset, the guiding principle was "Zeal for the Deal."
When Americans go into the Tehran bazaar to buy that Persian carpet, and the merchant overhears the husband whisper to the wife, "I'm not leaving this shop without it," he will rub his hands with glee. "Barack Obama!"

Steven J. Rosen is Washington Project Director of the Middle East Forum, and previously Foreign Policy Director of AIPAC.

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