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Problems Facing Syria's Referral to the UN Security Council

While the International Atomic Energy Agency has passed a resolution that refers Syria to the UN Security Council for constructing a covert nuclear reactor, there are a number of significant problems with the resolution that could affect the UN’s ability to take action.

published by
Arms Control Wonk
 on June 11, 2011

Source: Arms Control Wonk

Problems Facing Syria's Referral to the UN SecuritI left the M Building at the Vienna International Centre at the end of the day on Thursday just after 6 p.m., as the cleaning brigade arrived to pick up the debris of official statements and coffee cups scattered about the place about an hour after the IAEA’s June Board of Governors meeting wrapped up. The arrival of the Putzkolonne upon my departure for the U1 metro and my hotel was appropriate because by the end of the meeting on Thursday things on the ground were certainly a lot messier than they seemed when the board began meeting on Monday.

The board meeting opened that day with a few fairly ho-hum items–the IAEA’s annual report on the technical cooperation programme, and some doings concerning preparation for a pending ministerial meeting on Fukushima (which doesn’t look likely to be very ministerial)–and the board members on Wednesday walzed into serious verification matters beginning with Iran. We got into Syria late on Thursday morning and what transpired was duly recorded by my friends at Reuters.
But I don’t want to get ahead of myself.
When I arrived in Vienna at the beginning of the week I saw a draft resolution–GOV/2011/40–which had been sponsored by 13 countries–a bunch of Euros plus Australia, Canada, South Korea, and the U.S.–which on the face of it looked pretty straightforward.
On Tuesday evening our time in Vienna, Jeffrey posted the resolution here.
The bottom line is right there in operative paragraph 1.: Syria’s construction of a covert nuclear reactor at Dair Alzour and its clear breach of its Code 3.1 obligation in not submitting the design information to the IAEA in advance of that fact "constitute non-compliance with its obligations under its Safeguards Agreement with the Agency in the context of  Article XII.C of the Agency’s Statute."
Open and shut case–right?
It might have been had the road been exceedingly carefully prepared and had things gone well. That wasn’t out of the question because we began the week with a very hard fact that should have supported passage of the resolution by a wide margin: an IAEA investigation that arrived at no resolution for nearly four years because Syria didn’t cooperate. Basta. Sounds like shooting fish in a barrel. Well, it wasn’t.
The U.S. gave the IAEA a bunch of intelligence information which backed its claim that the site was a construction site of a plutonium production reaction that was virtually finished when Israel bombed it in August 2007. The data, we hear, looks pretty good. There are some procedural quibbles regarding some of the environmental sample data. But concerning the task of establishing something like a one-to-one spatial correlation between what was at Dair Alzour and what we know a North Korean plutonium production reactor looks like, the IAEA may have been onto something that looks like a smoking gun at least. Over the last couple of years, before the IAEA reported its findings last month, it had a satchel full of extremely close-resolution photographs of the site taken over time.
DG Yukiya Amano agrees that the data looks solid but he has got to be more than a little careful. We’ve been there before: In 2002, his predecessor Mohamed Elbaradei had reaffirmed the IAEA’s conclusion that, Iraq, in the crosshairs then, had given up on trying to acquire nuclear weapons. President Bush and General Powell claimed they had intelligence to the contrary and went to war with Iraq. They were wrong. Before that, more generally, back in the 1990s and after the first Gulf War, the safeguards buzz in Vienna was all about empowering the IAEA to use intelligence data to look for non-declared, hidden activities. A bunch of member states–including a few important US allies–then kicked up a ruckus about how the IAEA could become hooked on data provided by big powerful countries like the United States with so-called "national technical means" to collect intelligence. So there’s a little sensitivity in the VIC about intelligence information. As there should be.
So what does Amano do after he succeeds ElBaradei in late 2009 ? Two things at once. The first is, he gives Syria about a year to decide to clear the air over Dair Alzour. That’s a lot of time in this business. But he’s willing to give it to them because he narrowly escaped a defeat in the election to the Director-Generalship at the hands of G-77 states. At least a few of these were spoiling for a fight after South African Ambassador Abdul Minty lost the election at the hands of the same states who now want to turn up the heat on Damascus.
While Amano is giving Syria time, he’s also collecting and sifting through the U.S. intelligence data which is beginning to accumulate. But he’s also hunting for, and getting, data from other sources to validate findings of the super-secret stuff. For instance, the Department of Safeguards found some pretty interesting and unclassified French satellite radar information.  At the end of last month, Amano tells the board the IAEA thinks that building at Dair Alzour was a reactor. The U.S. and the others then put forth a draft resolution making note of that fact, calling Syria out of compliance, and bringing the matter to the attention of the UN Security Council, which is what the IAEA Statute says is supposed to happen in such a case.
So on Monday, we see a resolution with 13 sponsors. For it to pass, according to the IAEA Statute, it needed a simple majority. I was told on Monday that, by all accounts, the simple majority was there. When it came to a vote on Thursday afternoon around 4 p.m., that turned out to be the case. The sponsors had their majority. As U.S. Ambassador Glyn Davies explained to the Vienna press corps after the vote, in fact the resolution’s sponsors did better than that, because "we got a result of nearly three-to-one in favor." In fact they recorded 17 votes in favor against just six opposed. That meant that, beyond the 13 sponsors, they picked up a few more supporters. Singapore, in nuclear matters a member of the Non-Aligned Movement (NAM) with a difference; Cameroon–for reasons that escape me; the United Arab Emirates (UAE), which is working hand in glove with key resolution drafting states to set up its nuclear power program; and, finally, Japan, which didn’t get on to the resolution bandwagon until late because it is understandibly beset with other more immediate nuclear problems these days. The nay-sayers were Azerbaijan, China, Ecuador, Pakistan, Russia, and Venezuela.
That's where things get a little complicated. There are a bunch of wrinkles. What are they? For now I’ll just list ‘em, because I’m about to walk out the door and down the street and get on a bus at Schwedenplatz to take me to the Vienna airport.
  • To begin with, there are 35 countries on the board. The resolution referring Syria to the UNSC passed with fewer than half the members supporting it.

  • The resolution passed with just three of the P-5 countries on the board signing on. Russia and China opposed it. That wasn’t a surprise, especially after NATO took a strong interest in the future of Muammar Qaddafi.

  • Then there are all those abstentions–11 of them: Argentina, Brazil, Chile, India, Jordan, Kenya, Niger, Peru, South Africa, Tunesia, and Ukraine. Mongolia was absent.

  • The resolution reported Syria to the UNSC without the benefit of a firm judgment from the IAEA Department of Safeguards and the DG that that thing at Dair Alzour was a reactor. Amano told the board it was “very likely” a reactor, but to some people in NAM delegations, that ain’t the same as saying you know its a reactor.

  • Amano appears to have discounted for good the idea of calling a special inspection in Syria to get access to Dair Alzour and other sites. I asked a  number of people in the board meeting this week whether a non-compliance citation would have had more credibility if Amano had beforehand requested a special inspection which was rejected by Syria. Some of the answers to this question, and especially after reading Ambassador Davies’ lips late on Friday afternoon, seem to have been ”yes.”

  • The preambular language in GOV/40 also presented a problem. It’s reference to “concerns regarding the maintenance of international peace and security” is clearly aimed at the UNSC with a wink at Chapter VII of the United Nations Charter, authorizing the UNSC to use non-military and military means to ”restore international peace and security”  Until now, a lot of IAEA member states have doubted whether the nuclear situation in Syria represents such a threat, since the installation in question at Dair Alzour has been destroyed.

  • And that issue raised among a number of board members the concern that the Syria resolution–on the eve of a UNSC resolution brought forth by France and the U.K. concerning Syria’s action in brutally suppressing domestic dissent–was “meant to further the goal of regime change,” as one NAM country ambassador told me in the middle of the board discussion on Thursday.
It certainly wasn’t the case that, inside the closeted board meeting, Syria made an intellectually brilliant,  stunning case for its shopworn claim that the facility Israel destroyed wasn’t a reactor. The Syrian ambassador in fact came close to putting a few delegates to sleep with a dirge that lasted about 50 minutes and that basically informed the board that "we don’t see the reason why we should have had to cooperate with you for the last three years and so therefore there is no reason for tabling this resolution."
The NAM group likewise missed a golden opportunity to raise the above objections in my bullet points. Instead, it disingenuously ignored the fact that there is a serious non-compliance issue here, and instead droned on and on in the room about its outrage in the aftermath of Israel’s air raid which in 2007 destroyed the building. And instead of getting after the indeed weighty and real issues raised by the veiled reference in the resolution to Chapter VII and the issues of consensus-formation, the Egyptian Ambassador waxed on in the boardroom about his objections about what the IAEA told or didn’t tell Syria about its findings, about Syria’s airy offer in late May to "fully cooperate" with the IAEA, and expressing solace in the–largely irrelevant–conclusion by the IAEA that particles of anthropogenic uranium found at the MNSR facility under safeguards would be further considered as a routine safeguards issue.
A few of the states making interventions and statements to the board on Thursday–South Africa, for instance–did their homework, and they got it. You don’t have to agree with their conclusions, but they raised some sticky problems on Thursday after lunch.
All in all, this resolution had its virtues. I may try to explain them on the Carnegie site over the next few days. The resolution also has its problems. Because of these, there are some people who were in the boardroom in Vienna–by no means all of them among the abstainers and that Mongolia delegation that didn’t show up to vote–who will breathe a sigh of relief that this resolution won’t fly in New York because the Russians and the Chinese will assure that outcome.
Lastly, questions will be asked about what the resolution's' sponsors' expectations were this week. GOV/40 was left open for amendments until the vote was taken on Thursday afternoon. I had figured that implied that the sponsors would along the road this week decide whether it would be better off in the final analysis to put to a vote a weaker resolution, warning Syria to get on the stick in a hurry or face the collective wrath of the board in September. That might have gotten a bigger majority. Astoundingly, however, on Thursday afternoon the text of GOV/40 was more or less the same text we saw at the top of the week. The U.S. group really wanted a non-compliance resolution from the outset, was the word from people in the boardroom. Washington was prepared to lower the pressure just a notch–by considering a text that might cite Syria for non-compliance without an immediate referral to New York–so went the explanation in some quarters–but the U.S. and others gave up on that option when it turned out after canvassing delegations that just one more country was prepared to switch its abstention into a yes vote.
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