Iran’s Nuclear Smuggling Legacy: Finders Keepers? – Analysis

In sorting through Iran’s nuclear supplies, P5+1 must decide how to handle illegally gained materials and equipment.

By Leonard S. Spector

As the clock ticks towards the November 24 deadline for concluding a deal with Iran to shut down its weapons-related program, a critical dimension of Iran’s nuclear misconduct is at risk of being overlooked: What to do with the smuggled components that enabled Iran to advance to the threshold of nuclear weapons?

Iran’s sensitive uranium-enrichment program – the program that could be most rapidly adapted to build nuclear weapons – is profoundly contaminated with illegally obtained materials, equipment and technology without which it could not operate.

Crucial illegally garnered goods include high-strength aluminum, steel and carbon fiber needed for Iran’s uranium-enrichment centrifuges, themselves; pressure transducers for managing the flow of uranium gas during the enrichment process; and special lubricants. These dual-use goods are subject to export controls in their countries of origin and to a UN Security Council embargo – restrictions that Iran has evaded repeatedly and systematically for years as it has smuggled out this nuclear contraband.

With Iran’s enrichment facilities now subject to inspection by the International Atomic Energy Agency, IAEA, to ensure that material flowing through them is not being diverted to nuclear weapons, Iran has declared that these are peaceful facilities, just like hundreds of others around the world under the IAEA system. On this basis, Iran has asserted its inalienable right under the 1970 Nuclear Nonproliferation Treaty to expand these nuclear facilities as it might choose.

The trouble is that while it is true that states have the right to pursue nuclear energy for peaceful purposes, Iran, in effect, is claiming the right to do so by illegal means. Not surprisingly, such a right has never been recognized internationally. Indeed, in 2004, the Security Council declared in Resolution 1540 that illicit trafficking in nuclear-relevant goods “poses a threat to international peace and security….”

The so-called P5+1 group – the permanent members of the Security Council (China, France, Russia, the United Kingdom and the United States) plus Germany – are now engaged in crucial negotiations with Iran on the future of the country’s nuclear program. A final agreement is expected, among its key provisions, to authorize Iran to operate a small enrichment facility and to provide the IAEA-enhanced inspection rights in that country. Since illicitly acquired goods permeate the enrichment program, any such program will inevitably make use of such goods with the apparent blessing of the P5+1, presenting a disturbing dilemma.

To disregard the history of Iran’s nuclear-related smuggling would not only set a deplorable precedent, but would also undermine Security Council Resolution 1540, requiring all states to adopt strict controls over exports of nuclear-relevant goods. It would also make a mockery of the Security Council’s multiple resolutions embargoing nuclear transfers to Iran and deal a grievous blow to the extensive efforts of the United States and other concerned governments to promote tighter nuclear export controls worldwide. The purloined goods, moreover, could provide the core elements for a future clandestine Iranian enrichment facility.

These issues are already on the minds of US negotiators. The key question is how to address these challenges without overloading and causing the collapse of current P5+1 negotiations with Iran. A worthwhile modus vivendi, potentially acceptable to all sides, may, however, be possible.

Iran is to be allowed a small enrichment program and a monitored “white channel” is expected to be established to permit Iran to import needed items for that program, subject to close monitoring. There would be little point, however, in demanding that Iran disgorge illicitly acquired items already in use in the agreed program, only to have Iran then repurchase the same items through legal channels.

However, illegally acquired items that are not in current use for what would become the permitted program but that will be available for possible future use – including clandestine use – require more assertive treatment, as do Iran’s nuclear smuggling networks.

For illegally acquired goods not in use, the first step is straightforward: Ensure that these items are placed under IAEA monitoring to reduce the risk that they might contribute to a clandestine program. These items will presumably be declared to the IAEA, most likely without reference to their origin, as it establishes a baseline for monitoring Iran’s nuclear and related industrial activities under the enhanced inspection system the pending agreement is expected to establish.

The United States and others will have their own lists of purloined items now in Iran, and if some do not show up on the IAEA monitoring list, the matter must be pursued as a potential material violation of the final agreement through the joint commission expected to be set up as part of the accord to resolve implementation disputes.

The pending P5+1 agreement with Iran, however, must also establish the principle that illegally acquired goods, even if inspected, are not rightly in Iran and cannot ultimately remain there, but must be destroyed or returned to their proper owners.

Which items should be subject to these special remedies would not be decided as part of the pending agreement, but would be matters to be dealt with by the joint implementation commission. This sounds like a heavy lift for US negotiators, but what argument might Iran possibly present to justify continued possession of its ill-gotten goods?

Presumably, especially sensitive items obtained by Iran in violation of the Security Council’s embargoes, first imposed in 2006 or those for which there is strong, disclosable evidence of illegality from formal judicial proceedings would top the list of goods to be eliminated. The burden of proof, however, would be on Iran: If Tehran could not show a proper trail of authorized transfers that brought these items into its hands, the remedy – destruction or return – would apply. If Iran demurred it would, again, risk being declared in breach of the accord.

The principle of destruction or return of illicitly acquired nuclear-related goods is not new. It has been enforced in a number of past proliferation cases, including ones involving China, Israel and Libya, and, in one recent instance, US prosecutors even obtained the return of certain computers sent illegally to Iran.

As for illicit nuclear procurement networks, if these remain intact Iran will retain the ready capacity to pursue clandestine facilities. The job of such networks, however, will be made markedly more difficult if they must secretly replace much of Iran’s previously purloined stocks rather than merely fill in remaining gaps. This underscores the value of the “destroy or return” remedy.

More is needed, however, to constrain these networks.

• The pending agreement must contain an unambiguous understanding that subsequent illicit nuclear-related procurements will be considered a material breach of the accord.
• The Security Council embargoes on nuclear- and missile-related goods must continue in force – with an exception to allow support the limited nuclear program agreed to under the deal.
• Afer the final agreement is signed, UN and unilateral sanctions against parties involved in past illicit nuclear procurements must remain in force, and national investigations and enforcement actions for past law-breaking must continue as before.

These varied measures will not fully rectify Iran’s history of illicit nuclear acquisitions, but they will reaffirm the international community’s continued concerns about such behavior, partially mitigate its most serious impacts, and help deter future illegal procurements by others, without placing undue burdens on the current negotiations for a final accord.

Leonard Spector has written extensively on nuclear proliferation matters. He is currently based at the Washington, DC, office of the James Martin Center for Nonproliferation Studies.