Tackling Non-proliferation After Iran

The recent Israeli and US attacks on Iran’s nuclear program have occasioned much commentary on their prudence and even their legality. Much verbiage has been produced on the questions of: how much damage was done to Iran’s nuclear facilities and how far back its progress towards a nuclear weapon has been set; how close Iran was to a nuclear weapons capability and whether it had made the decision to seek one; how much Highly Enriched Uranium Iran had accumulated, and how much had survived the attacks; whether Iran would now abandon pursuit of a nuclear weapon for fear of further attacks or resume progress more energetically in order to deter them; and what lessons other potential proliferators would draw. Ignored, however, is what these attacks tell us about the broader non-proliferation framework in which they took place. That framework is deeply problematic, blurring distinctions between states that have nuclear weapons and those that don’t. It also ensures that when decisions to take or refrain from taking military action are made, they are based on imperfect information and with no good options from which to choose.

The current Iranian regime began a secret nuclear weapons program in the 1980s, which was eventually discovered by US intelligence. In 2003, Iran formally suspended its weapons program, claiming it sought only the peaceful use of nuclear power. The 2015 Joint Comprehensive Plan of Action (JCPOA) allowed Iran a civil nuclear capability under certain safeguards and inspections by the International Atomic Energy Agency (IAEA). Iran has since been a threshold nuclear state or in nuclear latency, terms for states capable of developing nuclear weapons but which have not done so. But they are unhelpfully capacious, encompassing states with merely the requisite technological sophistication and resources, those at different stages along the road to a nuclear weapons capability, and those requiring only a political decision to take the final step of conducting an explosion to demonstrate possession of a weapon. Threshold states exist on a continuum of proximity to a usable weapon, and the precise degree matters.

Nuclear latency is problematic in part because it blurs the distinction between peace and war. Threshold states can gain many of the benefits of possessing nuclear weapons from merely pursuing them, with greater proximity bringing greater benefits, including the freedom to engage in aggression with relative impunity. Even exaggerated proximity confers benefits, with Saddam Hussein hinting Iraq was closer to a nuclear weapons capability than it was, to intimidate his rivals for regional hegemony. The current Iranian regime has been engaged, almost since its inception, in an undeclared war against Israel, using proxies such as Hamas in Gaza, Hezbollah in Lebanon, the Houthis in Yemen, and the former Assad regime in Syria, to conduct more overt hostilities, while itself engaging in ‘gray zone’ activities such as cyberattacks and targeted assassinations. Its perceived closeness to acquiring nuclear weapons imposed increasing restraint on its adversaries and in the negotiation of the JCPOA it used the threat to withhold agreement to extract concessions such as the lifting of economic sanctions as well as de facto acceptance of its proxy warfare against Israel and sponsorship of terrorism.

However, should Iran achieve a deliverable nuclear weapons capability, outright nuclear attack on Israel would not be the most likely scenario. However, given the regime’s nature and history, it would be enough of a possibility, and a sufficiently dire one, that Israel would be fully justified in preventive military action. More likely, though, possession of nuclear weapons would backstop the escalation of Iran’s undeclared but ongoing war against Israel by other means, with the fear of nuclear retaliation deterring a response.

Israel’s consistent, and the US administration’s intermittent, demand that Iran relinquish uranium enrichment as part of any new agreement has occasioned commentary about its acceptability or unacceptability to Tehran. Its rationale has aroused less attention, yet it reflects a distinct approach to non-proliferation significantly more promising than the current one. When a threshold state has been permitted to enrich uranium but agreed not to seek nuclear weapons, compliance can be monitored by such means as onsite inspections of nuclear facilities as well as aerial and satellite reconnaissance.

For example, there are prima facie indications of noncompliance: the presence of enriched uranium in quantities or enriched to levels unnecessary for civil purposes; construction of nuclear facilities designed to evade detection or survive attack; and interference with onsite monitoring. Iran has crossed all these red lines, bringing IAEA censure in June for noncompliance with the JCPOA. But once a state has been permitted an enrichment capacity, the subsequent steps towards a nuclear weapon are progressively harder to differentiate from one another and to confirm. The crucial late steps of weaponization and preparation of a delivery system can be decentralized, with components developed in separate facilities small enough to escape detection. There would remain only the final assembly of the weapon, a ‘cold test’ (i.e. without a live charge) and then a demonstration explosion.

The political decision to produce a weapon or refrain from doing so is the hardest step to confirm, resting as it does on subjective assessments of decisionmakers’ minds. In this case, Iran’s proxies had been destroyed or weakened, leaving closeness to a nuclear capability as the last remaining pillar of its regional power status. Israel’s decision to attack was made when it was unclear how close to a weapon Iran was, though it had responded to the IAEA censure by threatening to increase its enrichment capacity, including at a new, undisclosed facility.

While the Israeli decision was made with imperfect information and therefore no certainty as to its effects, it was perfectly rational. Indeed, the workings of the JCPOA had left no acceptable alternative, given the risk of gambling on an Iranian nuclear capability being safely distant, the political decision to develop one not having been made, or of a new agreement resembling the JCPOA to be negotiated, which Iran would violate when convenient. But to attack could be no more than the least bad option, given the progress towards a bomb Iran had already been allowed to make. The fatal flaw in the JCPOA, and the non-proliferation framework of which it had been a part, was that Iran had been permitted an enrichment capability, making it much harder to verify exactly how far towards a weapon it had moved or how effective military action would be.

While the 1970 Non-Proliferation Treaty guarantees states access to “the benefits of peaceful applications of nuclear technology”, it provides no right to enrich. Many states rely on enriched uranium supplied by international consortia to supply their civil nuclear programs, with no need for domestic enrichment capabilities. In such cases domestic enrichment and the infrastructure required can be detected, with emissions from plants at an early stage of development particularly easy to detect. Laser spectroscopy can also be used to identify enriched uranium at long distances. Mounting the appropriate systems on drones, combined with satellite surveillance, would detect the enriched isotope itself and the facilities enrichment entails, more reliably than onsite inspection at existing facilities, to which access can be denied or hindered. Since it is easier to determine if enrichment is taking place where it is prohibited than its nature and scale where it is permitted, the former is a sounder base for enforcing non-proliferation. And since it permits detection and removal of a dangerous nuclear capability at an early stage, it is more likely to provide an unambiguous and satisfactory resolution.

A workable framework for future non-proliferation should draw the line of what is permissible at enrichment. Where the nature of the regime and the geopolitical environment make it unacceptable for a state to acquire a nuclear weapons capability, it should be denied an enrichment capability as well. In particular, the major Western powers should impose a ban on domestic enrichment but allow access to enriched uranium from elsewhere. Furthermore, the detection of a domestic enrichment capability would require its immediate removal, preferably negotiated and followed by intrusive onsite verification. Failing immediate agreement, any enrichment facility would be considered a legitimate military target, to be attacked at a suitable moment. Drawing the line at enrichment allows military action to be undertaken with the best possible intelligence about the problematic facilities and the best chance of their destruction.

In the case of Iran, we know too little about the effects of the Israeli and US attacks to predict Tehran’s future moves with confidence. With luck, the fear of repeated attack and its overall weakness will force the regime to accept a new arrangement under which it would relinquish a domestic enrichment capability and nuclear weaponization programs. This could be finessed with the face-saving expedient of Iran’s participation in a wider enrichment consortium, provided its own domestic facilities were verifiably dismantled. Iran should be informed that if it does not agree, its entire nuclear infrastructure will be considered a legitimate target, to be attacked in future without warning. But Iran has so far shown no interest in such an arrangement. More likely it will either make a less restrictive deal and cheat, with the aim of getting close to a nuclear breakout or simply agree to no deal at all. In either case, the West’s only option would be to reconcile itself to the necessity of repeated attacks on Iran’s nuclear program which, while Iran retains an enrichment capacity, will have to be taken with limited information and no certainty about their probable effects.

In rethinking non-proliferation, we must consider not only what we can prudently do, but what we are justified in doing. Critics of the recent Israeli and US operations claim they were not pre-emptive but preventive attacks. While the former forestalls an imminent threat and is widely regarded as permitted by international law, the latter anticipates a more distant one and is not. But the distinction is one of those which nuclear latency blurs. It was formulated when imminent attack was generally indicated by the visible massing of troops and arms. It is hard to sustain when the threat materializes with the mating of secretly enriched weapons grade uranium with a newly assembled delivery vehicle. Under such conditions, a state will act on imperfect, potentially inaccurate intelligence on a looming threat rather than risk the attack that provides irrefutable confirmation. Where the perceived imperatives of international law conflict with those of national survival, international law is unlikely to fare well. And in this case, Iran was already at war, albeit undeclared and indirect, with Israel, and arguably with the United States. To grant it immunity against attacks on its nuclear program is to allow it the benefits of belligerency without the consequences.

While future non-proliferation efforts, whether aimed at Iran or other states whose possession of nuclear weapons poses unacceptable risks, will never be easy, drawing the line at enrichment clarifies the distinctions nuclear latency too readily blurs. It increases the ease of detecting noncompliance and ensures that when resort to force is necessary, it is with a reasonable chance of success.