A new report from Iran’s hawkish Ministry of Intelligence and Security (MOIS) suggests the Iranians may be more open to achieving a peaceful resolution to the dispute over their controversial nuclear program than ever before. ”With Obama’s reelection Tuesday, there is guarded hope in Tehran and Washington that a solution agreeable to [...]]]> via Lobe Log

A new report from Iran’s hawkish Ministry of Intelligence and Security (MOIS) suggests the Iranians may be more open to achieving a peaceful resolution to the dispute over their controversial nuclear program than ever before. ”With Obama’s reelection Tuesday, there is guarded hope in Tehran and Washington that a solution agreeable to all parties in the nuclear standoff might finally be possible”, writes Jason Rezaian in the Washington Post:

The findings in the report suggest that the ministry has a pragmatic understanding of the challenges the country faces, the cost it is paying for continuing uranium enrichment at current levels, the threat of Israeli aggression and, perhaps most important, a way out of the stalemate.

Although the statement refers to Israel as the “Zionist regime,” it is otherwise devoid of the ideological tone that characterizes most ministry reports and that has been the Iranian norm for decades. Instead, the arguments in the 1,200-word report reflect many of the views agreed on by international advocates of a negotiated solution, namely that the potential destruction caused by strikes on Iran’s nuclear facilities would set back the program by only a few years at most and that diplomacy is a preferred way forward.

But according to Ali Vaez, a senior analyst at the International Crisis Group, the Post may be reading too much into the report. ”While Iran’s MOIS report provides a sober analysis of the current standoff, it doesn’t imply a different approach from the strategy Iran has been pursuing during the past decade. All one needs to do is to read the conclusion,” he said.

The conclusion reveals that Iran’s leaders do not fear an attack on their nuclear program because of their belief in the supremacy of Iran’s attack deterrent and self-defense capabilities. It says that war can be avoided through diplomacy or “military preparedness”.

Meanwhile, the Obama administration is reportedly likely to engage the Iranian government in direct negotiations in what would be a last-ditch diplomatic effort to head off a military strike on its nuclear facilities in the coming months.

But as Iran scholar Farideh Farhi points out, the key to moving the diplomatic process forward and avoiding a military conflict is flexibility on both sides:

Unless Khamenei and company are given a way out of the mess they have taken Iran into (with some help from the US and company), chances are that we are heading into a war in the same way we headed to war in Iraq. A recent Foreign Affairs article by Ralf Ekeus, the former executive chairman of the UN special Commission on Iraq, and Malfrid-Braut hegghammer, is a good primer on how this could happen.

The reality is that the current sanctions regime does not constitute a stable situation. First, the instability (and instability is different from regime change as we are sadly learning in Syria) it might beget is a constant force for policy re-evaluation on all sides (other members of the P5+1 included). Second, maintaining sanctions require vigilance while egging on the sanctioned regime to become more risk-taking in trying to get around them. This is a formula for war and it will happen if a real effort at compromise is not made. Inflexibility will beget inflexibility.

George Washington Political Science Professor Mark Lynch in Foreign Policy:

With military action in the background but not imminent, and sanctions taking a real political and economic toll inside of Iran, now seems to be the right time to begin a serious effort at real talks with Iran over [...]]]> via Lobe Log

George Washington Political Science Professor Mark Lynch in Foreign Policy:

With military action in the background but not imminent, and sanctions taking a real political and economic toll inside of Iran, now seems to be the right time to begin a serious effort at real talks with Iran over its nuclear program — and to be prepared to take yes for an answer.

Roya Boroumand, the executive director of the Iranian human rights-focused Abdorrahman Boroumand Foundation, for the Huffington Post:

But there is still hope. Today, unlike the immediate post-revolutionary years, the Iranian leaders are concerned about their image abroad. They also respond to their critics and deny the routine violation of their obligations under the International Covenant on Civil and Political Rights. Since 1975, Iran is bound by the ICCPR, which set forth the rights and freedoms essential to an open, safe and pluralistic political system where citizens can be heard and determine their own destiny.

For too many years, the international community, including the United States, has dealt with Iran’s nuclear ambitions and its use of violence in foreign policy independently from the abysmal human rights situation inside the country. It is time for a long-term strategy that would seriously challenge the leadership by shifting the focus to their human rights record, the non-representative nature of Iran’s political system and on the rights of citizens to organize and express themselves.

Former senior State Department intelligence analyst, Greg Thielmann, in Arms Control Now:

Any successful solution to the Iran nuclear crisis will have to include Iran’s agreement to again abide by the terms of the Additional Protocol, if not to grant even wider access to IAEA inspectors. As former IAEA Deputy Director General Olli Heinonen stated in an October 31 email exchange with the author, “[the Additional Protocol] will be indispensable in understanding [Iran’s] enrichment and heavy water programs…”

Various Iranian officials have suggested a willingness to accept the Additional Protocol if Iran’s right to enrichment is made clear. Endorsement of the Additional Protocol by Iraq, one of Iran’s few friendly neighbors, should help to increase pressure on Iran to do likewise.

Iran scholar and Lobe Log contributor, Farideh Farhi:

Unless Khamenei and company are given a way out of the mess they have taken Iran into (with some help from the US and company), chances are that we are heading into a war in the same way we headed to war in Iraq. A recent Foreign Affairs article by Ralf Ekeus, the former executive chairman of the UN special Commission on Iraq, and Malfrid-Braut hegghammer, is a good primer on how this could happen.

The reality is that the current sanctions regime does not constitute a stable situation. First, the instability (and instability is different from regime change as we are sadly learning in Syria) it might beget is a constant force for policy re-evaluation on all sides (other members of the P5+1 included). Second, maintaining sanctions require vigilance while egging on the sanctioned regime to become more risk-taking in trying to get around them. This is a formula for war and it will happen if a real effort at compromise is not made. Inflexibility will beget inflexibility.

Former chief analyst of the CIA’s Counter-terrorism Center, Paul Pillar, in the National Interest:

On that all-preoccupying matter involving Iran’s nuclear program, the Iranians have given ample indication of flexibility on restricting their enrichment of uranium and on much else. But they would be foolish to make unilateral concessions with no prospect of getting anything in return on matters of importance to them.

When someone seems to be adhering to a position that ought not to be a vital interest to them, we should not make the mistake of interpreting this as a mark of obduracy and unreasonableness. More likely it means they are willing to bargain.

Also for the Huffington Post, Reza Marashi and Trita Parsi of the National Iranian American Council:

Both Tehran and Washington have realized that their opening offers this past summer were non-starters. Iran wanted all sanctions lifted before it would begin limiting its enrichment program. American sought Iranian concessions upfront only to offer sanctions relief at the very end of the step-by-step process. Moreover, “going small” — that is, demanding less of Iran in order to justify the absence of sanctions relief — was politically unfeasibly.

This gave birth to the idea of ‘Going Big’ — circumventing the politically tricky sequencing and instead putting everything on the table. But somehow, ‘Going Big’ was mysteriously linked to an ultimatum. If the Iranians did not agree to our last (and first) big offer, there would be war.

This would be a serious mistake that would guarantee war. While going bigger may be necessary to reach an agreement, we can’t get a big offer right through a single attempt. If the Iranians presented a big offer to the P5+1 — “or else,” the world would rightly reject it and see it as an attempt to justify Iranian intransigence.

Similarly, Tehran — and the world — will view any US ultimatum as an attempt to create a path towards war. Diplomacy should help avoid war, not lay the groundwork for it.

via Arms Control Law

Colonel Libman was responding to my post from last Thursday regarding Steve Walt’s recent FP piece. However, I wanted to give Col. Libman’s comment, and my response to it, their own post.  I’ll first copy Col. Libman’s comment as a block quote, and then give [...]]]> By Dan Joyner

via Arms Control Law

Colonel Libman was responding to my post from last Thursday regarding Steve Walt’s recent FP piece. However, I wanted to give Col. Libman’s comment, and my response to it, their own post.  I’ll first copy Col. Libman’s comment as a block quote, and then give my response to it below:

Dear Mr. Joyner. I thought this is a blog about LEGAL issues relevant to arms control. This post does not contribute anything to the legal analysis, and seems more like another chapter of the “save Iran” campaign you seem to engage in persistently on this platform.

The first chapter was titled “Can the U.S. or Israel Lawfully Attack Iran’s Nuclear Facilities?” and, at least, had some fair legal arguments, although I had two comments on this discussion:
First, the whole discussion was planted in Jus Ad bellum, presuming that an attack on Iranian nuclear facilities will be the beginning of an armed conflict. This is overlooking the possibility that Iran and Israel are already in war. Just this morning Iran’s proxies in the Gaza strip launched Grad rockets to the Israeli city of Beer Sheva, causing a shutdown of all schools in the city (See this report: http://www.ynetnews.com/articles/0,7340,L-4297621,00.html). And this is not a singular incident. Earlier this month, Iran’s northern proxy, the Hezbollah, sent a drone infiltrating Israeli territory. I need only quote Lebanese ex PM, Mr. Siniora (not a great fan of Israel) that said: “Sending the drone over Israel is not a Lebanese decision, however the move was made at an Iranian behest. Such act needs techniques only available in Iran”. Mr. Siniora further expressed the concern that such an act implicates Lebanon in possible military operations and Israeli reactions.
(The Daily Star, Lebanon News: http://www.dailystar.com.lb/News/Local-News/2012/Oct-14/191353-siniora-hezbollah-drone-sent-over-israel-at-irans-behest.ashx#ixzz2Aa1suZtw )
It is interesting to note that Prof. Dinstein, in his book “War, Aggression and Self-Defence”, discusses the 1981 Israeli raid on a nuclear reactor under construction in Iraq. In his opinion, the attack is justifiable as a continuation of the state of war that had started as a result of the Iraqi invasion of Israel in 1948 and its subsequent pulling out without signing an armistice or a peace treaty. Of course, the situation between Israel and Iran is not identical, but perhaps a similar argument can be made.

Secondly, your comment in the discussion following this post that “We all know the lengths to which the U.S. and Israel have gone to argue that the Jus in Bello hasn’t applied in significant ways to, e.g., the war in Afghanistan; prisoners at Guantanamo Bay; predator drone strikes in Pakistan; military strikes in Gaza and in the West Bank” has no base in the facts, at least when it comes to Israel. Israel never denied the applicability of Jus In Bello to its armed conflict with Palestinian armed groups, ongoing since 2000. Just check the official Israeli government position paper “The Operation in Gaza – factual and legal aspects”, part III (available at: http://www.mfa.gov.il/NR/rdonlyres/E89E699D-A435-491B-B2D0-017675DAFEF7/0/GazaOperationwLinks.pdf ). Indeed, Israel did deny the applicability of the IV Geneva Convention in the territories it occupied from Egypt and Jordan in 1967, but this had nothing to do with the rules on the conduct of hostilities.

The next chapter in this “save Iran” crusade was “The Myth of Surgical Strikes on Iran’s Nuclear Facilities”. I will presume, for the purpose of this discussion that the figures quoted of possible Iranian civilian casualties because of a strike are realistic, although they do not seem to come from impartial sources. However, one cannot draw such unequivocal conclusions about illegality of an attack in Jus in Bello just based on potential civilian casualties. The rule of proportionality is about the RELATION between civilian casualties and damage to civilian objects and the military advantage of the attack. Only when the civilian toll is excessive in relation to the military advantage, is the attack illegal. You have not considered the anticipated military advantage Israel or the US might see in such an attack. Maybe a hint can be found in the words of former Iranian president Hashemi Rafsanjani . In a speech in 14 December 2001, he warned that if Muslims possessed nuclear weapons, “the attitude of global arrogance would have to change”. He added that “the use of even one nuclear bomb in Israel will destroy everything, whereas [a nuclear explosion] would only harm the Islamic world” (available at: http://www.cer.org.uk/sites/default/files/publications/attachments/pdf/2011/wp513_eng_iran-1512.pdf ). And this is considered to be an Iranian “pragmatist” and “moderate” leader.
Just to clarify, I do not necessary think that a military strike on Iran’s military nuclear program, either by the US or by Israel is a good idea. In any case, it can only be a last resort. However, if your legal position is that Israel cannot act before an Iranian nuclear warhead is about to be launched against it in the name of holy Jihad, I suggest you check again your fundamental understanding of law. As the former president of the Israeli supreme court, Aharon Barak, once said : “A Constitution is not a prescription for national suicide” (“The Judge in a Democracy”, 2006, Princeton University press, p. 291). I think it is true for law in general and for international law, too.

Dear Colonel Libman, I cannot help noting the profound irony of the chief international lawyer for Israel’s military – someone who is paid to convince the world that whatever Israel does is legal – accusing me of political bias in my legal analysis.

I certainly won’t apologize for bringing attention to Steve Walt’s article. Unlike you, I don’t see it as a part of a “save Iran” campaign, but as a part of a “let’s think about this rationally and not go to war” campaign. I recommend its reading, and its thinking, to you.

With regard to your legal arguments, I note that you use the non-technical term “state of war” when making your jus ad bellum arguments. I suspect this is because you know that trying to claim that there is an actual armed conflict – the only relevant legal term – in existence between Israel and Iran, would be unpersuasive according to the jus in bello and the relevant facts. There is no armed conflict in existence currently between Israel and Iran, and to claim that there is is just grasping at straws in an unpersuasive attempt to do your job – convince us that whatever Israel does is lawful.  Lawyers for the USG, particularly during the bad old Bush years, have similarly tried to argue that the US is in some kind of eternal state of war with a method of violence – terrorism – and with anyone (names to be continually added) that the USG thinks employs that method of violence against the US or its allies. That argument of a continuing legal war on terrorism, which is of course intended to legally justify anything the USG wants to do anywhere in the world that has any connection to terrorism, no matter how strained the connection – has been similarly unpersuasive to international legal scholars.

When I made the statement that you quote about Israel denying the applicability of the jus in bello to strikes in the West Bank and Gaza, I was indeed referring to Israel’s repeated erroneous denial that Geneva Convention IV applies to the West Bank and Gaza, and its continued argument that these are not occupied territories under the jus in bello. I understand the distinction you are making with regard to conduct of hostilities, and I concede that to be more correct I should have replaced the word “strikes” in that sentence with “occupation,” so that the sentence would have read “We all know the lengths to which the U.S. and Israel have gone to argue that the Jus in Bello hasn’t applied in significant ways to, e.g., the war in Afghanistan; prisoners at Guantanamo Bay; predator drone strikes in Pakistan; military occupation in Gaza and in the West Bank.” The overall point I was making in that sentence, in context, which was clarified by the hypothetical I spelled out in the next paragraph, is that, like the US, Israel has gone to great lengths whenever possible to try to limit its exposure to the law of the Geneva Conventions, and might be expected to do so again in the context of a strike against Iran. Israel’s repeated denials of the applicability of GC IV to the West Bank and Gaza, and denial that Israel has the legal duties of an occupying power – arguments that have been thoroughly discredited by the International Court of Justice and the vast majority of academic commentators – are certainly proof of these efforts.

Now with regard to your comments about the anticipated military advantage of attacking Iranian nuclear facilities, and the potential for this military advantage to outweigh, under proportionality analysis, the very significant civilian casualties that would be caused by the release of dangerous forces from these attacks, which as I and Marco noted in the post and comments, is the subject of both treaty and customary international law establishing an exceptionally high standard of care for the attacking force.

The question of military necessity is of course a complicated one, as is the question of actually applying the proportionality test as between military necessity and civilian protection. I tell my students that it’s kind of like comparing apples and anvils. As it happens, we are very honored here at Alabama right now to have President Aharon Barak visiting with us and teaching a short course. And I had the privilege today of having lunch with him. I mentioned our exchange to him, and we talked about questions surrounding this issue, including whether military necessity in IHL is essentially a subjective determination on the part of military officials, or alternatively whether it is essentially an objective determination that can be reviewed by courts of law and in other legal fora.  And even if it is an essentially objective determination, to what extent should the law defer to military officials’ determination of military necessity?  I found the conversation very enlightening. His view was that military necessity is essentially an objective determination that can be reviewed by courts and judges, and he said that as a judge he didn’t give any deference to military assessments of military necessity over others’ assessments of military necessity. And he said further – and I found this point particularly analytically helpful – that governments bear the burden of proof of military necessity. I think this principle has very useful application to IHL situations, and places the burden for establishing military necessity on the shoulders of the attacking military.

There is of course a long history of disconnect between Israeli military and civilian officials on the one hand, and the broader international legal community on the other, on questions of international humanitarian law, including the question of military necessity and proportionality balancing.

We have seen this disconnect play out so many times in the judgments of the International Court of Justice; in the assessments of investigating groups sanctioned by international organizations including the United Nations; and in the assessments of respected non-governmental organizations.  Israel will claim that military actions in the West Bank, Gaza, or Lebanon are justified by military necessity; but international jurists and other international investigators will subsequently assess these claims to be legally incorrect, in light of countervailing legal considerations of human rights, as protected by international humanitarian law, and embedded in the IHL principles of proportionality and discrimination. Examples of such occasions include the ICJ Wall Advisory Opinion, the Goldstone Report, the van Kappen Report on Qana, and Amnesty International’s reports on the Gaza Blockade and on the 2006 Lebanon campaign.

So often in these cases, Israeli officials’ subjective assessment of military necessity and its proportional relation to anticipated civilian casualties, simply doesn’t convince international jurists and investigators from other countries, who feel they are able to look at the facts and the law in a more objective light, and apply the law objectively to produce a correct result.

Now, who is “right” in the context of these disagreements between Israeli officials and the international community is a complicated question, and one that I have thought a lot about. I was going to say something on this subject here, but I think I’ll have to save it for another day.  I’ll rather limit myself here to saying that I see this same phenomenon happening now in the case of threatened Israeli attacks on Iran’s nuclear facilities.

From a military advantage perspective, attacking Iran’s nuclear facilities – including conversion, enrichment and fuel fabrication facilities – appears to most in the international legal community to offer no appreciable military advantage in itself. There is simply no real evidence that Iran is using these facilities for military purposes. This has been established over and over again by Western intelligence agencies. The idea that Iran might, at some indeterminate time in the future, take the decision to use these facilities as part of a military nuclear program, appears to be a suspicion in the minds of Israeli officials that has no real basis or support in the observed behavior of Iran (not just in the incendiary words of some of its leaders), or in any actual evidence regarding Iran’s nuclear program. With the burden of proof resting upon its shoulders for demonstrating military necessity, these facts will make satisfying this burden impossible for Israeli officials. I know very well that you will disagree with the assessment I have just made. But that is precisely my point. There is a longstanding, and continuing disconnect at work.

And even if one does look ahead to some possible military use of these nuclear facilities in the future to find a military necessity for attacking them now, it is well understood that destroying Iran’s known nuclear facilities now would only set Iran’s nuclear program, whatever its character, back a few years – it would not permanently destroy Iran’s program. And in terms of other factors that should also be influentially weighed in calculating military advantage, there is also an increasing awareness that an attack on Iran’s nuclear facilities would actually likely work as a catalyst to Iran’s development and manufacture of a nuclear weapon, and to its withdrawal from the NPT.

All of these factors, taken together, appear to most in international legal community to produce no military advantage from an attack on Iran’s nuclear facilities. Indeed quite the opposite. I think this is how the international legal community overwhelmingly views the prospect of such an attack, and how international jurists and investigators would assess the military advantage factor in a proportionality analysis under international humanitarian law.  You can see, then, how this assessment of military necessity wouldn’t even come close to the IHL standard necessary to legally justify such an attack on targets that would release dangerous forces, likely resulting in thousands of civilian deaths.  Thus, I am quite confident that the ICJ and other international jurists and investigators would concur with my and Marco’s view that such attacks would be unlawful.

Again, I know that this is not how you would view and assess the military advantage of such an attack, as you’ve said. And therein lies the disconnect that is my overall point here. And again, I’m sure we could go back and forth for hours about who, as between Israeli officials and international lawyers outside of Israel, is right in their assessments of the relevant criteria, and their proportionality with each other.

But I do think it is important to emphasize that the determinations and legal analysis under IHL must remain objectively applied by the international legal community.  If not, and if every attacking state is to be given deference in their subjective determinations of military necessity and the proportionality and discrimination tests, IHL would be rendered completely moot and incapable of fulfilling its primary purpose, which is to restrain the methods, means, and choice of targets of militaries during armed conflict, in order to impose a modicum of civility on this most uncivilized of human activities.

The Institute for Science and International Security (ISIS) has released a brief report emphasizing that Iran continues to move toward nuclear weapons capability and the international community must halt further progress. ISIS’s latest concern centers around Iranian lawmaker Mansour Haqiqatpour’s October 2 comment that Iran could enrich uranium to 60 percent [...]]]> via Lobe Log

The Institute for Science and International Security (ISIS) has released a brief report emphasizing that Iran continues to move toward nuclear weapons capability and the international community must halt further progress. ISIS’s latest concern centers around Iranian lawmaker Mansour Haqiqatpour’s October 2 comment that Iran could enrich uranium to 60 percent if diplomatic talks fail. From Reuters:

“In case our talks with the (six powers) fail to pay off, Iranian youth will master (the technology for) enrichment up to 60 percent to fuel submarines and ocean-going ships,” Haqiqatpour said.

The powers should know that “if these talks continue into next year, Iran cannot guarantee it would keep its enrichment limited to 20 percent. This enrichment is likely to increase to 40 or 50 percent,” he said.

The US and international community should prepare for an official Iranian announcement of such high-grade enrichment, warns ISIS, adding that Iran has “no need to produce highly enriched uranium at all, even if it wanted nuclear fuel for a reactor powering nuclear submarines or other naval vessels, or for a research reactor”. The move would also “significantly shortens Iran’s dash time to reaching weapon grade uranium,” the report said.

ISIS’s conclusion:

Taken in this context, any official Iranian announcement to make highly enriched uranium should be seen as unacceptable. Many will view such a decision as equivalent to initiating a breakout to acquire nuclear  weapons, reducing any chance for negotiations to work and potentially increasing the chances for military  strikes and war. Before Iran announces official plans to make highly enriched uranium, the United States and  the other members of the P5+1 should quietly but clearly state to Iran what it risks by producing highly  enriched uranium under any pretext.

No details are provided as to what exactly needs to be done to make Iran understand that such a move would be “unacceptable”, but we are informed that Iranian enrichment of high-grade uranium would increase the chances for military conflict.

The fact that Iran is still years aways from being able to test a device, and according to US and international official assessments has still not made the decision to do so, is also absent from ISIS’s report. Indeed, according to the bipartisan Iran Project report on the benefits and costs of military action on Iran (emphasis mine):

After deciding to “dash” for a bomb, Iran would need from one to four months to produce enough weapons-grade  uranium for a single nuclear device. Additional time—up to two years, according  to conservative estimates—would be required for Iran to build a nuclear warhead  that would be reliably deliverable by a missile. Given extensive monitoring and  surveillance of Iranian activities, signs of an Iranian decision to build a nuclear  weapon would likely be detected, and the U.S. would have at least a month to  implement a course of action.

It was exactly 50 years ago when then-President John F. Kennedy took to the airwaves to inform the world that the Soviet Union was introducing nuclear-armed missiles into Cuba and that he had ordered a blockade of the island – and would consider stronger action – to force their removal.