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Does the IAEA Have the Authority and Capacity

Does the IAEA Have the Authority and Capacity to Investigate Nuclear Non-Compliance?

By Ephraim Asculai

On October 28, 2007 International Atomic Energy Agency (IAEA) Director General (DG), Dr. Mohamed ElBaradei, criticized the Israeli attack on a suspected Syrian nuclear site and said, "If countries have information that the country is working on a nuclear-related program, they should come to us."1 He then went on to argue that the Vienna-based Agency "had the authority and capacity to investigate any such information." In view of past performance, the claim of "authority and capacity" bears review.

The IAEA Secretariat, the organization headed by Dr. ElBaradei, does not have the authority to investigate any accusation in a given country unless either:

1. the accusation concerns an installation which has been placed under safeguards by agreement with the host country;
2. the IAEA has an Additional Protocol Agreement with country in question (giving it some extra inspection privileges);
3. the country in question has invited the IAEA to investigate the accusation; or,
4. the IAEA Board of Governors (BOG) has approved a Secretariat request for a Special Inspection, and the country in question has acquiesced to that request. The only time where a request for a Special Inspection was approved by the BOG, the country in question (North Korea) declined to comply with the request. Consequently, the inspection was never carried out.
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The conclusion of all this is that the IAEA does not, in fact, have the authority to force any investigation upon an unwilling IAEA Member State.

With respect to the "capacity" part of the DG statement, the past history of the IAEA does not sustain his argument. Capacity implies two things: the ability to uncover the facts and the willingness to point an accusing finger when the evidence warrants it. Claims of IAEA ability to uncover the facts are refuted by the examples of Iraq and Libya, where it took, respectively, a war (the First Gulf War) or a multinational Proliferation Security Initiative action to expose nuclear weapons development programs; in neither case did the IAEA play any effective role.

But even when the IAEA has had the facts, it has declined to produce any indictment in a timely manner, primarily for political reasons (which should be immaterial for a supposedly “non-political” Secretariat). The most blatant example was when the Secretariat had all the facts concerning Iran's concealment of its huge uranium enrichment program but declined to name Iran as being in "non-compliance" with its Nuclear Non-Proliferation Treaty (NPT) obligations. For years, it stated only that Iran was "in breach" of its obligations, a term that did not mandate referring the issue to the United Nations Security Council. The IAEA is well aware of installations and activities at various sites in Iran but declines even to point them out since it does not have any authority to inspect them.

This leads into a different but related issue, Dr. ElBaradei's insistence that he hasn't seen “any concrete evidence” of a secret Iranian weapons program.2 If the issue were not so serious, this statement would invite ridicule. Given the history of Iranian deception, dissimulation and concealment of activities and the roadblocks that Iran has put in front of inspectors, it is stunningly naïve to rely on what the DG has not see as evidence of what does not exist. And those who are not partisans of the DG can be forgiven for asking what, short of actually seeing operational weapons, would lead him to admit that there actually is a possibility that Iran is actually in the process of building a nuclear weapons capacity.

Dr. ElBaradei has also estimated that Iran is still at least a few years away from “being able to build a nuclear bomb.” In light of the technical facts as reported by Dr. ElBaradei himself to his BOG and to the Security Council, it is not at all clear to what the DG is referring. "Being able to build a nuclear bomb" means enriching enough weapons-grade uranium and assembling all other necessary components. The IAEA may well be in charge of ascertaining whether the first requirement has been met but it has no way of investigating the second requirement. In fact, the IAEA has reported Iranian progress in uranium enrichment, the first quantities of which are already being amassed. In that, sense, the potential for producing a nuclear weapon is steadily advancing.

Nevertheless, weapons capacity is still a matter of process rather than of situation, and it can be stopped, though only by an intense, universal effort. Brokering deals among the international actors and trying to persuade and appease Iran will certainly not achieve the desired end. If Dr. ElBaradei really wants to prevent Iran from becoming a nuclear power, he has to start with honest and accurate reporting rather than acting as a judicial officer determined to preserve Iran’s status as non-guilty of any infraction unless and until its guilt is demonstrated "beyond a reasonable doubt." The stakes are too high to accommodation this standard of behavior. In a domestic court of law, a defendant could walk free and become a menace, causing real but not mortal damage to society as a whole. But the possible consequences of Iran becoming a nuclear-armed menace for the region and for the world are far more serious, and Dr. ElBaradei therefore needs to adopt a different and more proactive approach.

1 www.reuters.com/article/worldNews/idUSN2844276720071028?pageNumber=2
2 www.bloomberg.com/apps/news?pid=20601087&sid=af5CCgmyvQQg&refer=home


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