Australia / Israel Review

Ephraim Asculai & Emily B. Landau

The Joint Comprehensive Plan of Action (JCPOA) between the five permanent members of the UN Security Council plus Germany (P5+1) and Iran remains a controversial and potentially dangerous deal. During the election campaign, President-elect Donald Trump vowed to scrap it.

Trump is no doubt correct that the JCPOA is deeply flawed, and did not achieve what it originally set out to do; nor was it signed nor ratified by any of the parties. Still, the deal indicates strong commitment on the part of all sides to uphold its terms and timetables, in order to get what they want from the deal. Serious questions arise, however, with regard to what each side has been gaining – and losing – from the deal, and make it imperative for the next president to take steps to strengthen compliance, and deliver new messages of determination to Iran.

Weaknesses in the JCPOA

Without delving too deeply into technical details, but keeping in mind Iran’s notorious disregard for commitments made (confirmed by the IAEA regarding the Nuclear Non-Proliferation Treaty [NPT]), the major faults and weaknesses of the deal include:

1) The “sunset” clauses that set timetables for ending restrictions, enabling Iran in 10-15 years to resume full-scale and more efficient uranium enrichment, and reprocess nuclear reactors’ spent fuel to produce plutonium (albeit with some limitations) – each of which can serve as an essential component of a nuclear weapon. This sets the scene for a very short “breakout” time in the future.

2) Weak and insufficient provisions for inspecting military sites suspected of harbouring explosive mechanism research and development (R&D) activities.

3) Lack of provisions for searching for concealed facilities, including those that were not detected by intelligence, but nevertheless could exist and be potentially dangerous.

4) On a broader level, the JCPOA grants Iran’s nuclear program legitimacy. Even with a cap of 300 kg on enriched uranium stockpiles, Iran continues to enrich, while doing away with the excess amount. Moreover, Iran has been encouraged by President Obama to develop a vast nuclear infrastructure in 10-15 years.

5) Finally, the JCPOA did not cover the Possible Military Dimensions (PMD) of Iran’s nuclear program in the context of the deal, leaving it for an IAEA probe to be conducted in the latter months of 2015. And when the IAEA did submit its definitive statement on Iran’s past activities in early December, the report was immediately brushed aside, as all parties rushed forward to Implementation Day in mid-January 2016.

By insisting in the negotiations on keeping its nuclear infrastructure, Iran succeeded in maintaining its nuclear “breakout” capability. Indeed, in contrast to their initial stated aim of dismantling Iran’s nuclear program, the P5+1 ultimately agreed to a significantly watered-down goal: namely, to extend Iran’s possible breakout to nuclear weapons from what was estimated to be 2-3 months, to a year. But once the deal expires, breakout time will again be reduced to two months or even less. And with the potential to produce the core of a nuclear explosive device, the explosive device itself, and mount a warhead on advanced delivery systems, Iran could be a nuclear weapons state within a relatively short time.

What can be done?

Since the deal was announced last July, the major problem encountered has been Iran’s attempts to test the resolve of the P5+1, and the US in particular, by pushing the envelope on a number of issues – from illegal ballistic missile tests to military cooperation with Russia in Syria to protect the Assad regime. Iran has also twice exceeded the produced heavy-water storage limit in the deal, and attempted to procure technologies and components with nuclear applications. Rather than confronting Iran on these issues, the Obama Administration has tended to turn a blind eye, explaining everything away as minor and insignificant.

As such, the first order of business for the new administration is to change this attitude, and take a more determined stance towards Iran’s activities, something President-elect Trump seems poised to do.

Moreover, as the leading power in the P5+1 forum, the US must change the narrative with regard to Iran’s past weapons-related nuclear activities. While officials have brushed this off as unimportant, preferring to be forward looking, this approach has served Iran’s interests in maintaining a facade of nuclear innocence.

Part of keeping Iran’s feet to the fire is reminding Iran and the world that for decades Iran worked on a military nuclear capability in direct violation of the NPT. Therefore, Iran cannot be trusted, even with minor violations of the JCPOA. This should encourage the United States to intensify its intelligence-gathering activities in Iran in seeking out misdeeds, also with the cooperation and assistance of allies.

Turning to the deal itself, the IAEA Inspectorate, Secretariat, and policy-making organs must be pressured to do their job properly and not give in to Iran on issues that could turn critical in the future.

In addition, the JCPOA Joint Commission and US authorities must establish rigorous oversight activities, to ensure that all necessary activities are being carried out properly, that nothing is missed, and the results are assessed correctly. In the event of inconsistencies, these must be dealt with in a timely manner. The oversight of the nuclear deal must also take a much more serious attitude toward possible violations of the JCPOA Procurement Channel. Over the summer of 2016 it was reported that German Intelligence found Iran to have made many attempts in 2015 to procure technologies and components that could be used in a nuclear weapons program. The Obama Administration refused to take the information seriously.

Although the JCPOA does not prohibit entry and inspection of locations where explosive-mechanism R&D activities are, or are suspected of taking place, neither do the relevant provisions ensure this, especially in a timely manner. The US must demand such access, or renew sanctions and/or political pressure.

According to the Additional Protocol of the IAEA (which Iran has agreed to abide by), the Inspectorate can use wide-area environmental monitoring for the detection of illicit activities. This is a powerful tool, and if wisely used around suspect areas, it can detect and even deter illicit activities. In addition, the “full-scope” safeguards agreement with Iran, still in force, has provisions for “special inspections”. If Iran refuses access, it should be sanctioned for doing so.

The IAEA periodic reports that have been requested by the UN Security Council since the first Gulf War have always been comprehensive and transparent, enabling independent assessments of the situation, first in Iraq and then in Iran. Since Implementation Day in January 2016, the IAEA reports have become very thin – almost devoid of technical details and key information on Iran’s nuclear program. Full reports must be reinstated if the IAEA is to regain its reputation of openness, transparency and comprehensiveness.

The IAEA also misused irrelevant excuses of confidentiality for not disclosing irresponsible side-agreements with Iran, although the P5+1 also hold responsibility for this.

Finally, the sunset clauses of the JCPOA must be revisited, and no automatic passage from one stage to the next should be permitted, unless the P5+1 unanimously agree. More importantly, Iran’s international and internal behaviour should be the benchmark against which the expiration of restrictions is assessed, including not only its nuclear behaviour, but support for terror and rejection of Israel’s place in the Middle East.

Indeed, the decision made by the P5+1 to deal exclusively with the nuclear issue, purposely neglecting the major issues of human rights, the aggressiveness of Iran in the Middle East and its support of terrorism, can dangerously backfire. Iran’s aggressive statements and activities, including construction and testing of more precise long-range missiles that can carry a nuclear payload, do not bode well. The world has enough collective power to pressure Iran on these points.

Ironically, the initial Iranian reactions to Trump’s election were that he must not tamper with the JCPOA; Iran’s President Rouhani said the deal cannot be changed by one vote, and threats were issued that Iran “has options” if the nuclear deal fails.

Why? Most likely Iran is attempting to deter any changes because so far things are going quite well from its perspective. But Iran also wants to get the full economic benefits it expects from the deal, and probably to squeeze more money in exchange for prisoners taken on bogus charges. In addition, Iran has strengthened its position across the Middle East and does not want the US to be able to slap more sanctions on it, or begin interfering with its plans. Better to keep the JCPOA façade for now.

In conclusion, despite Trump’s pre-election rhetoric, it is reasonable to assume that he will not rip up the deal. Instead, he should focus on the weaknesses of the JCPOA, and on repairing the damage that has been done.

To do so, the new administration should fully utilise the provisions of the JCPOA, the valid safeguards commitments of Iran to the International Atomic Energy Agency (IAEA), and introduce some essential additions and modifications. In addition to improvements regarding the JCPOA itself, things need to change in terms of US-Iran interactions. Iran has been exploiting the eagerness of the Obama Administration to ignore and/or attempt to explain away all moves Iran has made over the past year to strengthen its position in the military realm, and across the Middle East. This trend can still be reversed. Until Iran indicates that it plans to be a willing international and regional player, it cannot be treated as one, especially when it comes to the nuclear realm.

Dr. Ephraim Asculai is a senior research associates at the Institute for National Strategic Studies (INSS) at Tel Aviv University. He worked at the Israel Atomic Energy Commission (IAEC) for over 40 years and later worked at the IAEA in Vienna on issues of radiation protection of the public. Dr. Emily B. Landau is Head of the Arms Control program at INSS. She is author of Decade of Diplomacy: Negotiations with Iran and North Korea and the Future of Nuclear Nonproliferation. © Times of Israel (www.timesofisrael.com), reprinted by permission, all rights reserved.