AnalysisThe Mossad haul and Iran's Clause 14 problem

Very existence of Iran’s secret nuclear archive may be a violation of nuke deal

Israel’s exposé of Iran’s own nuke documentation shows why 2015 pact was so important, say defenders of the deal. Jerusalem’s retort: If the deal worked, the archive wouldn’t exist

Raphael Ahren

Raphael Ahren is a former diplomatic correspondent at The Times of Israel.

Iranian Foreign Minister Mohammad Javad Zarif, left, is welcomed by EU foreign policy chief Federica Mogherini on March 16, 2015 at the European External Action service headquarters in Brussels.(photo credit: AFP/ EMMANUEL DUNAND)
Iranian Foreign Minister Mohammad Javad Zarif, left, is welcomed by EU foreign policy chief Federica Mogherini on March 16, 2015 at the European External Action service headquarters in Brussels.(photo credit: AFP/ EMMANUEL DUNAND)

Critics of Prime Minister Benjamin Netanyahu’s Monday exposé on Iran’s secret nuclear weapons program have argued that it contained nothing new — no smoking gun that proved the Islamic Republic violated the terms of the nuclear deal it struck with six world powers in 2015.

It was well known that Iran had a covert nuclear weapons program, European governments and other defenders of the deal noted, adding that it was precisely Iran’s history of dishonesty that necessitated the landmark deal with its provisions for an unprecedentedly intrusive inspection regime.

Indeed, Tehran appears to be complying with the operative provisions of the so-called Joint Comprehensive Plan of Action. As far as is known, Iran has not, for example, resumed enriching uranium to weapons-grade levels.

However, Iran certainly violated the spirit of the agreement, by lying over its past efforts to build a nuclear weapon. Iran was obligated to come clean over those efforts, and failed to do so. The deal, the Mossad’s findings clearly show, was thus born in sin.

Prime Minister Benjamin Netanyahu exposes files that prove Iran’s nuclear program in a press conference in Tel Aviv, on April 30, 2018. (Miriam Alster/Flash90)

But if one takes a closer look at the JCPOA, it’s possible to argue that Iran also actually violated its provisions.

Iran’s Clause 14 problem

The requirement for Iran to “address past and present issues of concern relating to its nuclear program,” which is specified in Clause 14 of the agreement, was not optional but a clear condition for the deal to take effect.  Under the provisions of the deal, Iran was obligated to answer outstanding questions, and only once the IAEA certified Iran’s compliance with this requirement, in December of 2015, could the deal move ahead.

At the time, the IAEA reported that it found that “a range of activities relevant to the development of a nuclear explosive device were conducted in Iran prior to the end of 2003.”

These activities “did not advance beyond feasibility and scientific studies, and the acquisition of certain relevant technical competences and capabilities,” the Vienna-based watchdog stated.

The agency went on to state that it knew of no illicit Iranian activities after 2009. “The Agency has found no credible indications of the diversion of nuclear material in connection with the possible military dimensions to Iran’s nuclear program,” its report concluded.

And thus the agreement moved forward and came into force.

As is now evident in the wake of the Mossad’s remarkable intelligence haul from Iran’s own archive, however, Iran lied all along about its secret nuclear weapons program — in public statements, in which Iranian leaders professed and profess to reject atomic bombs for ideological reasons, as well in its JCPOA-required report to the IAEA. Thus, as Netanyahu put it on Monday night, the agreement was a product of “Iranian deception.”

Had the IAEA known then what it will see for itself when its experts study the material Israel obtained and is making available to the agency, the deal might have never gone into effect.

And that’s not all.

A further breach?

Clause T82 of the JCPOA’s Annex I (about nuclear-related measures) states that Iran will not engage in “activities which could contribute to the development of a nuclear explosive device.” These include “designing, developing, acquiring, or using computer models to simulate nuclear explosive devices.”

Israel’s Hadashot news on Tuesday evening quoted US officials arguing that Iran’s retention of such models after the deal was signed, which the files obtained by Israel show — and particularly its reported transfer of its nuclear weapons files between different locations as it sought to keep them hidden — could also very well be seen as a breach of the terms of the deal.

Backers of the deal are likely to contend that this is an incorrect interpretation of Clause T82, arguing that the wording outlaws Iran taking new actions but does not require Iran to destroy already existing documents. They will also likely note that the JCPOA did not explicitly obligate Iran to eliminate its nuclear archives.

But, opponents of the deal will note, Iran was not allowed to have a secret nuclear weapons archive in the first place.

Moreover, the Islamic Republic committed to implement the agreement “in good faith and in a constructive atmosphere… and to refrain from any action inconsistent with the letter, spirit and intent of this JCPOA.”

It is not hard to argue that hiding documents about an illicit secret nuclear weapons program is emphatically inconsistent with the spirit of the deal and can hardly be considered acting “in good faith.”

Iranian President Hassan Rouhani, right, talks with U.N. nuclear chief Yukiya Amano, left, during their meeting in Tehran, Iran, Sunday, Sept. 20, 2015. (AP Photo/Vahid Salemi)

The deal’s preamble states that “Iran reaffirms that under no circumstances will Iran ever seek, develop or acquire any nuclear weapons.” Why then, Israeli officials ask pointedly, echoing Netanyahu in his Monday night presentation of the documentation, did Iran in 2017 hide its vast nuclear archive in a top secret location — a dilapidated warehouse in the south of Tehran?

Israeli and US officials contend that Iran was hiding these files so as to be able to resume its nuclear weapons program at a time of its choosing.

“Archives are kept for future reference — in Iran’s case for when the deal expires,” Deputy Minister for Diplomacy Michael Oren stated Tuesday. “And the archive’s blueprints flagrantly violate the deal which prohibits Iran from retaining any aspect of a bomb.”

US Secretary of State Mike Pompeo on Monday dismissed a reporter’s suggestion that the Iranians may simply have wanted to preserve the classified material for the historical record.

“The world can decide if this was for the Iranian museum [that] they decided to hang onto it,” he joked wryly.

Prime Minister Benjamin Netanyahu presents material on Iranian nuclear weapons development during a press conference in Tel Aviv, April 30 2018. (AP Photo/Sebastian Scheiner)

Many European critics argue that the Mossad’s astonishing find demonstrates why the deal was necessary, as it proves the need for robust verification measures.

“The fact that Iran conducted sensitive research in secret until 2003 shows why we need the intrusive inspections allowed by the Iran nuclear deal today. The verification provisions in the Iran nuclear deal would make it harder for Iran to restart any such research,” UK Foreign Secretary Boris Johnson said Tuesday, echoing his colleagues in Berlin and Paris.

But, Israeli officials retort, the very existence of Iran’s secret nuclear archive years after the accord was signed shows that the deal cannot deliver on its promise to adequately verify Iran’s behavior.

If the agreement was working as it should, the thinking in Jerusalem goes, Iran would have destroyed or at least reported its archive a long time ago. Since that didn’t happen, Israel believes Monday’s revelation was one more indication that the deal fails to properly address Iran’s nuclear shenanigans.

So what happens now?

US President Donald Trump is no fan of the deal, to put it mildly, though Jerusalem is still uncertain whether he will decide to quit the agreement on May 12.

“I’m sure he’ll do the right thing. The right thing for the United States, the right thing for Israel and the right thing for the peace of the world,” Netanyahu said on Monday night, as he concluded his presentation on the obtained Iranian documents.

On Tuesday, speaking to Israeli reporters in his Jerusalem office, he clarified that “the decision is President Trump’s alone. He’s a leader who knows how to take decisions, and he takes them.”

In this Tuesday, May 23, 2017 file photo, US President Donald Trump, left, shakes hands with Israeli Prime Minister Benjamin Netanyahu at the Israel Museum in Jerusalem (AP Photo/Sebastian Scheiner, File)

Proponents of the deal argue that the current arrangement is better than not having an arrangement at all, and that the US and Israel have no alternative plan. What is going to happen the day after Trump’s withdraws from the agreement, they ask? Will Iran resume its nuclear weapons program?

The prime minister is unfazed by various doomsday scenarios. In his view, the JCPOA is so terrible that nothing could be worse than leaving it in place. “The nuclear deal gives Iran a clear pass to an atomic arsenal,” he said Monday.

Quitting the deal — which means reinstating US sanctions against Iran — would deprive Tehran of much of the money it currently spends supporting Shiite militias across the Middle East, including Hezbollah, Netanyahu believes.

Even if the other five co-signatories don’t follow suit, the sheer size of the US economy and the effect of renewed US sanctions will greatly hurt Iran, which already suffers from dramatic inflation.

Trump, Netanyahu thinks, can demand a new agreement — as the president said Monday night that he might. And if that proves unattainable in the short-term, he could impose additional sanctions that would eventually force Iran to the negotiation table.

Additionally, Iran needs to be given an explicit nuclear red line, the prime minister reasons. In 2003, after the US issued credible threats, the ayatollahs temporarily froze their nuclear program. If Tehran remains defiant and begins enriching uranium to weapons-grade levels, it will have to pay the price, according to Netanyahu’s thinking.

After all, both the US administration and Israel have vowed repeatedly that they will never allow Iran to attain nuclear weapons capabilities. If Iran moves toward breaking out to the bomb, according to the thinking in Jerusalem, it needs to know it risks a military strike on its nuclear facilities.

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