Censuring ElBaradei (Iran)

Liars league

He marked his final meeting, with a big lie:

Mohamed ElBaradei. Iran’s failure to notify the Agency of the existence of this facility until September 2009, rather than as soon as the decision to construct it or to authorize construction was taken, was inconsistent with its obligations under the Subsidiary Arrangements to its Safeguards Agreement.

This is mere argument. It’s not unassailable fact, as he pretends.

(IAEA Board of Governors, Vienna, November 26 2009), referring to an underground construction site, 20 miles north of Qom, for a backup uranium enrichment facility, named Fodor, IAEA safeguarded, designed, Iran says, to preserve its Natanz technology and knowhow against bombing, which the U.S. and Israel repeatedly threaten, a prima facie war crime, see, Bombing Iran’s IAEA safe-guarded nuclear facilities.

Yes, Iran agreed to that new notice rule, in a letter (February 26 2003) — at least ElBaradei says it says it (GOV/2003/40, 6 June 2003, paragraphs 6, 15) (he didn’t post the letter for the rest of us to read). That new notice rule, ElBaradei says, appears in the 1992 “modified Code 3.1” (which he also doesn’t post), what he terms “Subsidiary Arrangements to its Safeguards Agreement.” ElBaradei says (GOV/2007/22, below), it’s an agreement under article 39 of Iran’s 1974 safeguards agreement (INFCIRC/214).

But Iran revoked that letter, 3 years later (February 6 2006) — as Iran promised it would do — 2 days after the IAEA Board of Governors voted to refer Iran to the U.N. Security Council (GOV/2006/14, 4 February 2006). ElBaradei didn’t post this letter either (GOV/INF/2006/3), but he quoted from it, 2 weeks later (GOV/2006/15, 27 February 2006, paragraph 31):

1. As stipulated in Para 7 of INFCIRC/666, from the date of this letter, our commitment on implementing safeguards measures will only be based on the NPT Safeguards Agreement between the Islamic Republic of Iran and the Agency (INFCIRC/214).

2. From the date of this letter, all voluntarily suspended non-legally binding measures including the provisions of the Additional Protocol and even beyond that will be suspended.

Iran’s first paragraph restores the 180-day notice rule (6 months), in the original, unmodified, Code 3.1 (also not posted), which ElBaradei describes thusly (GOV/2003/40, above, paragraph 15):

The Subsidiary Arrangements General Part in force with Iran from 1976 to 26 February 2003 included what was, until 1992, standard text which called for provision to the Agency of design information on a new facility no later than 180 days before the introduction of nuclear material into the facility….

Iran’s second paragraph revokes — what everybody agreed was voluntary and non-legally binding — Iran’s suspension of its enrichment activities, for 27 months (Tehran agreement, October 21 2003, Paris agreement, November 15 2004, INFCIRC/637), while the IAEA satisfied itself, that what Iran said was true, namely, the microscopic nuclear particles the IAEA found on its swipes at Natanz (before start-up), those particles were not from a nonexistent, secret, enrichment facility, but rather were imported from Pakistan, on the centrifuges Iran purchased from the A.Q. Khan network. Iran’s purchase was legal, did not violate the NPT, did not violate the safeguards agreement, and no agreement, and no law, required Iran to report that purchase to the IAEA, because, ElBaradei says, centrifuges are not a “nuclear facility,” absent nuclear material, in non-microscopic quantities (GOV/2003/40, above, paragraph 8):

[A] centrifuge component production facility is not a nuclear facility required to be declared to the Agency under Iran’s NPT Safeguards Agreement.

Iran’s second paragraph also revokes the Additional Protocol Iran signed (December 18 2003), and immediately implemented, pending ratification by the Majlis, Iran’s parliament. This too, everybody agreed, was voluntary and non-legally binding.

The next year, ElBaradei claimed Iran’s revocation was not valid, because he didn’t agree to it. He said he wanted to visit another construction site — which he had previously visited, before referral to the U.N. Security Council — a new nuclear research reactor at Arak (I-40), years away from completion. May be, he was merely testing Iran’s resolve.

Iran refused and reminded ElBaradei, that the 6 months rule applied — until the U.N. Security Council closes its agenda on Iran, and relations can return to normal. ElBaradei didn’t post this letter either (GOV/INF/2007/8, 29 March 2007), but he quoted from it, 2 months later (GOV/2007/22, 23 May 2007, paragraph 12):

12. On 29 March 2007, Iran informed the Agency that it had “suspended” the implementation of the modified Code 3.1, which had been “accepted in 2003, but not yet ratified by the parliament”, and that it would “revert” to the implementation of the 1976 version of Code 3.1, which only requires the submission of design information for new facilities “normally not later than 180 days before the facility is scheduled to receive nuclear material for the first time.” In a letter dated 30 March 2007, the Agency requested Iran to reconsider its decision.”

ElBaradei said, Iran’s February 2003 letter “cannot be modified unilaterally” (GOV/2007/22, paragraph 14). He cited the 1974 safeguards agreement, which permits amendments, with the consent of both parties: “The Subsidiary Arrangements may be extended or changed by agreement between the Government of Iran and the Agency without amendment of this Agreement” (INFCIRC/214, article 39, “subsidiary arrangements”).

Two years later, the IAEA legal adviser (Johan Rautenbach) agreed with his boss (“Statement by the Legal Adviser,” IAEA Board of Governors meeting, March 2-9 2009). That was ElBaradei’s old job (IAEA legal adviser, 1984-1993).

But there’s higher law, as both these lawyers well know, and didn’t mention:

Vienna Convention on the Law of Treaties, 1155 UNTS 331 (t.reg. 18232)

Article 49. Fraud. If a State has been induced to conclude a treaty by the fraudulent conduct of another negotiating State, the State may invoke the fraud as invalidating its consent to be bound by the treaty. …

Article 60. Termination or suspension of the operation of a treaty as a consequence of its breach.

1. A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part. …

3. A material breach of a treaty, for the purposes of this article, consists in: …

(b) the violation of a provision essential to the accomplishment of the object or purpose of the treaty.

Responsibility of States for Internationally Wrongful Acts, A/RES/56/83 (January 28 2002), A/RES/62/61 (December 6 2007)

Article 22. Countermeasures in respect of an internationally wrongful act

The wrongfulness of an act of a State not in conformity with an international obligation towards another State is precluded if and to the extent that the act constitutes a countermeasure taken against the latter State in accordance with chapter II of part three.


Iran has been the victim — for more than 2 decades — of relentless, abusive, material breaches of the NPT (nuclear non-proliferation treaty), by the United States, and by the conspiracy the U.S. leads (mainly with the EU3: U.K., France, Germany).

This is a lengthy history, sordid, despicable, immoral, dishonest, seizing Iran’s property at the docks, bought and paid for (armed robbery), taking Iran’s money, then refusing to deliver the nuclear fuel, or give the money back (theft), threatening, cajoling, other nations, who contracted or intended to supply Iran with nuclear fuel, electricity power stations, other lawful nuclear items (the threats are blackmail, “unwarranted demand with menaces” “with intent to cause loss to another”; the cajoling, a treble-damage tort, “actionable interference with contractual rights,” “tortuous interference with contract”).

This conspiracy (U.S., EU3) violates the NPT, which requires them, instead, to facilitate Iran acquiring everything it needs for its atoms for peace projects:

Treaty on the Non-Proliferation of Nuclear Weapons, 729 UNTS 168 (t.reg. 10485, dep.UK)

Article IV

1. Nothing in this Treaty shall be interpreted as affecting the inalienable right of all the Parties to the Treaty to develop research, production and use of nuclear energy for peaceful purposes without discrimination and in conformity with Articles I and II of this Treaty.

2. All the Parties to the Treaty undertake to facilitate, and have the right to participate in, the fullest possible exchange of equipment, materials and scientific and technological information for the peaceful uses of nuclear energy. Parties to the Treaty in a position to do so shall also cooperate in contributing alone or together with other States or international organizations to the further development of the applications of nuclear energy for peaceful purposes, especially in the territories of non-nuclear-weapon States Party to the Treaty, with due consideration for the needs of the developing areas of the world.

The material breaches, by the U.S. and its conspiracy, create legal remedies for Iran. These remedies include Iran’s legal right to conceal, from the IAEA, activities which are lawful under the NPT, but which (otherwise) should be reported under the safeguards agreement. A tiny amount of uranium hex gas, lawfully imported from China, in about 1990, was the principal item Iran kept secret from the IAEA, exercising its lawful right to pursue its atoms for peace projects, in the teeth of the unlawful conspiracy arrayed against it.

Lately, Iran was tricked and deceived by the U.S.-EU3 conspiracy, who pretended they had no objection to Iran’s uranium enrichment program, they merely wanted Iran to give the IAEA time to investigate their swipes. Iran agreed (Tehran agreement, October 21 2003), suspended enrichment for 27 months, and cooperated with the IAEA to ElBaradei’s satisfaction, as his quarterly reports attest.

The conspiracy next said they wanted to discuss the safeguarding of the enriched uranium (Paris agreement, November 15 2004, INFCIRC/637).

Iran agreed and offered, among many other things, “immediate conversion of all enriched Uranium to fuel rods to preclude even the technical possibility of further enrichment” (March 23 2005, detailed in INFCIRC/648), the exact result the conspiracy now claims it wants, more than 4 years later.

But the conspiracy refused to consider Iran’s offer and demanded permanent suspension of enrichment, instead — “a binding commitment not to pursue fuel cycle activities other than the construction and operation of light water power and research reactors” (INFCIRC/651, August 5 2005).

Whereupon Iran realized it had been tricked, defrauded, by a dishonest international conspiracy, which had lied, which was determined to coerce the complete, permanent, closure of Iran’s safeguarded enrichment industry — a repudiation, by the conspiracy, of the very object of the treaty, atoms for peace.

This unlawful demand, first by Bush, now by Obama, remains in place. Nothing will change, until Obama decides to get over it, get used to it, obey his treaty obligations, and accept Iran’s safeguarded enrichment program.

This unlawful demand, by the conspiracy, is the basis — as Iran explained it at the time — for the legal remedy Iran devised for itself, its decision to revoke all the extra cooperation with the IAEA, until the conspiracy relents, and returns to compliance with the NPT, accepting Iran’s safeguarded enrichment program, which the NPT is designed to permit and safeguard.

This is Iran’s carrot, to tempt the conspiracy to abandon their rogue life, return to the family of law-abiding nations. Iran’s standing offer, to resume its extra cooperation with the IAEA (GOV/2008/4, 22 February 2008, paragraph 55):

The Director General has continued to urge Iran to implement the Additional Protocol at the earliest possible date and as an important confidence building measure requested by the Board of Governors and affirmed by the Security Council. The Director General has also urged Iran to implement the modified text of its Subsidiary Arrangements General Part, Code 3.1 on the early provision of design information.

Iran has expressed its readiness to implement the provisions of the Additional Protocol and the modified text of its Subsidiary Arrangements General Part, Code 3.1, “if the nuclear file is returned from the Security Council to the IAEA”.

Iran provided this full cooperation, for 27 months, before the nuclear file was sent to the Security Council. But the conspiracy realized (as in the case of Iraq), that Iran was providing the international inspectors with access and cooperation, and the inspectors were examining, and clearing, all the conspiracy’s accusations, one-by-one, inspecting all the sites the conspiracy claimed were suspicious.

As with Iraq, the conspiracy’s accusations — which they cited, to justify referral to the U.N. Security Council — one-by-one, the IAEA disproved them, proved, that each and every one of them, the conspiracy’s accusations, are untrue.

This fact, ElBaradei certified, one-by-one, in his quarterly reports.


Double check

But is ElBaradei a liar.

In my opinion, any lawyer, properly informed, can reasonably believe, that an honest court, applying international law, would likely agree, or could reasonably agree, that Iran’s revocation, in 2006, of its 2003 letter, was legally valid, a proper exercise of its rights, conferred on Iran by material breaches, of the NPT, by the U.S. and by its conspiracy partners.

In my opinion, such a lawyer would be a “liar” if s/he concealed that opinion and asserted the contrary to be a fact.

In my opinion, any official receiving that opinion, from a lawyer s/he employed, that official (like ElBaradei, himself a lawyer) would be a “liar” if s/he asserted the contrary to be a fact, keeping that legal opinion secret.

But did it slip ElBaradei’s mind? did it not occur to him? that Iran has a valid legal argument? that the 180-day notice rule applies? that Iran’s notice was timely, of its Fodor construction site?

Could be. Iran has expressed its arguments in political terms, and has not cited (to my knowledge) the customary international law, enunciated in the U.N. Vienna Convention on the Law of Treaties (fraud, material breach) and in the U.N. I.L.C. draft Responsibility of States for Internationally Wrongful Acts (countermeasures).

But this is not the first appearance of this legal issue. ElBaradei and his legal advisers had 7 long years to apply their minds to it.

Because this same law also exonerates every single one of the minor reporting faults originally alleged against Iran, after Iran timely reported its Natanz construction site, during the IAEA 46th General Conference (September 16-20 2002) (GOV/2003/40).

And, ElBaradei has often said, Iran has fulsomely, and frequently, explained to him, the reasons for its caution, in reporting its activities, all of them lawful under the NPT, namely, to protect itself from the determination, by the U.S. conspiracy, to unlawful disrupt Iran’s lawful activities.

So if ElBaradei is not a liar, then he and his legal advisers (Johan Rautenbach, Simon Hannaford, Laura Rockwood, Wolfram Tonhauser), one or more or all of them, are negligent lawyers, and negligent international civil servants.

And that’s nearly as bad, because death, destruction, arson, theft, blackmail, violent covert action, kidnapping, bombing, unconscionable abuse, are the result.

Charles Judson Harwood Jr (Warlaw)

{more to come}


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