There is no need for evidence, buddy

Over the last month, discussions on verification activities in Syria has increased. Mohamed ElBaradei gave a short statement on the matter to the Board of Governors on 22 September 2008. He informed the assembled governors that:

In April this year, the Agency received information claiming that an installation destroyed by Israel in September 2007 at Al Kibar in Syria was a nuclear reactor. The Syrian authorities have repeatedly stated that the alleged site was not involved in any nuclear activities.

With Syria's cooperation, the Agency was able to visit Al Kibar in June 2008. Samples taken from the site are still being analyzed and evaluated by the Agency, but so far we have found no indication of any nuclear material.

In order to assess the veracity of information available to the Agency, we asked the Syrian authorities in July to provide access to additional information and locations. Syria has not yet responded to this request but has indicated that any further developments would depend on the results of the samples taken during the first visit.

I trust that Syria will show maximum cooperation and transparency and provide all the information needed by the Agency to complete its assessment.

Yesterday, I highlighted that samples taken at the site may indicate the presence of reactor-grade graphite. However, there seem to be no trace of nuclear material at the site. This is not entirely surprising given that the facility was not operating when it was struck by the Israeli air-raid.

The majority view within the Department of Safeguards is reportedly that the site very likely housed a graphite moderated reactor. The departmental firewalls are strongly upheld and information flows within the Agency itself is constricted. This is how it should be. Nevertheless, there is a minority within the Department that isn’t convinced by the data collected thus far, and that is reluctant to accept the conclusions of the U.S. intelligence community. Indeed, it would seem like the U.S. intelligence agencies enjoys a not insignificant confidence-deficit with large parts of the wider analytic community.

Now, there is an emerging debate about the utility of special inspections in Syria. Unfortunately, there has been a significant meshing of legal, political and tactical arguments. I think that some clarity is needed.

At heart is the assertion that the IAEA needs some sort of evidence to call for a special inspection. Those who advocate this view often equate evidence with documents or objects that establishes facts about the Syrian programme. This argument may be correct from a tactical or political point of view, but certainly not from a legal one.

Safeguards in Syria is implemented through the country’s comprehensive safeguards agreement (INFCIRC/407). This agreement entered into force on 18 May 1992. I’m going to refer to this agreement in this post, and not the model CSA (which is contained in INFCIRC/153),

Article 72 of Syria’s safeguards agreement reads, in applicable parts,

...the Agency may make special inspections ... if the Agency considers that information made available by Syria, including explanations from Syria and information obtained from routine inspections, is not adequate for the Agency to fulfill its responsibilities under this Agreement.

Note that a special inspection is made at the Agency’s discretion. It may engage in this activity, but may also choose not to if it can find other ways to fulfil its obligations. The IAEA’s main responsibility under the agreement is defined in article 2, which reads:

The Agency shall have the right and the obligation to ensure that safeguards will be applied, in accordance with the terms of this Agreement, on all source or special fissionable material in all peaceful nuclear activities within the territory of Syria, 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.

In other words, the Agency cannot choose not to follow up on leads that may involve the diversion of nuclear materials. While a reactor under construction doesn’t prima facie fall under article 2, associated activities such as the manufacturing and handling of nuclear fuel most certainly will.

If a country constructs a reactor, but does not have any associated safeguarded fuel cycle activities, all kinds of alarm bells should go off in Vienna. The fuel has to come from somewhere. Is it in the country? Do they intend to import it from somewhere? If so, import and exports may need to be declared. These questions alone raises doubt whether all source or special fissionable material is safeguarded.

And indeed, if there is nothing in the routine declarations, it is not far fetched to conclude that the information given by the state isn’t adequate for the organization to fulfill its obligation.

Technically, no evidence is needed for the Agency to start consider the special inspection procedure. Theoretically, a similar procedure could be initiated if, say, a country decides not to submit routine declarations on known sites (or submit incomplete information). The attentive reader may observe that this scenario is foreseen in article 76 (a) of the safeguards agreement.

Tactically, however, it may not be prudent to use the special inspection tool. According to Article 76 of the agreement, the Agency and Syria shall consult over the circumstances leading up to the inspection. This is a mandatory requirement. There is no time limit for consultations. Talking may take a long time.

As a result of the consultations the Agency may obtain access, in agreement with Syria, to information. It may also get access to any location under Syrian jurisdiction or control. If Syria refuses to cooperate at this point the matter could get referred to the Agency Board of Governors. The Board may call on Syria to take the required action without delay. However, broadly speaking that’s the limit of the Board’s enforcement capabilities (see article 18, but see also article 19).

It has been said that this procedure would take months, which would allow a country to relocate potentially incriminating evidence from locations, and to shred any documentation that may be harmful.

The Agency may therefore decide that a special inspection is not the best way to enable it to fulfill its own obligations. This call, however, is political and tactical and has nothing to do with the Agency’s rights and obligations.

I thought that distinction had to be made.