Diplomatic Miscalculations and the Threat of War

Shafaie: It appears from your recent Chatham House lecture and from your recent article published in The Telegraph that you have some differences with the official Western policies with respect to Iran’s nuclear issue. Is this your view that neither the Nuclear Non-Proliferation Treaty (NPT) nor the International Atomic Energy Agency (IAEA) statute require Iran to suspend or abandon enrichment activities allowed under those treaties?

Jenkins: It is certainly my opinion that the NPT does not require Iran to suspend nuclear enrichment. Iran concealed parts of its nuclear program for 18 years but after 2002, as far as I can judge based on my work with the IAEA, Iran came back into compliance with its Safeguards Agreement under the NPT. So Iran is entitled to enjoy its NPT rights to peaceful nuclear energy. However, because of these years of concealment prior to 2003, Iran’s neighbours are understandably anxious and they hope that Iran can go beyond the strict letter of the NPT and volunteer some additional measures to restore confidence in the purpose of Iran’s nuclear programme, for example apply the Additional Protocol.

Another measure could be a permanent on-site IAEA inspector presence at sensitive plants. Back in 2005 when Iran was talking to the UK, France and Germany, the Iranian negotiators suggested that they might be ready to offer this at the Natanz enrichment plant.

In 2003 they voluntarily agreed to apply the Additional Protocol as part of the Tehran Agreement with the EU3 (UK, France and Germany). The problem with that agreement was that it contained ambiguities, like many diplomatic agreements. The EU3 wanted the Tehran Agreement to lead to the abandonment of enrichment by Iran. When Iran finally understood that this was the European objective, they ceased to honour the Agreement; in other words they resumed enrichment-related activities. That led the Europeans to feel entitled to arrange for Iran to be reported to the Security Council.

Shafaie: When Iran as you said stopped honouring the Additional Protocol...

Jenkins: They stopped honouring the Tehran Agreement. The Tehran Agreement had two important elements to it, one was the Additional Protocol and the other was suspension. So they were applying the Additional Protocol but they stopped suspension.

Shafaie: And that was why the Europeans reported Iran to the Security Council?

Jenkins: The Europeans said to themselves: “because Iran has broken its side of the Tehran bargain, our response must be to report them to the Security Council." In Tehran, Europe had said to Iran: “if you apply the Additional Protocol and if you suspend, we will use our influence in the IAEA to ensure that you do not get reported to the Security Council." What Iran had done wrong throughout that period when they failed to declare certain things to the IAEA – their “non-compliance” – should have been reported to the Security Council. But Europe undertook to avert that because some of us feared that, if the matter went to the Security Council in 2003, the US would react counter-productively. But in return we wanted the Additional Protocol and suspension. So when Iran gave up suspension we thought: “OK you’ve broken the deal, we are now going to break our side of the bargain and report you to the Security Council”. However, we didn’t just do this to be nasty, or to punish Iran; we did it because we wanted the Security Council, which has the legal right to impose obligations on states, to demand suspension from Iran, so that Iran would be denied the chance to master enrichment technology.

And then there was the counter-reaction from Iran which was to say that now you have reported us to the Security Council, we are not going to apply the Additional Protocol anymore. So the whole Tehran Agreement, which was a good agreement, unravelled.

Shafaie: So was this the first time that the demand for suspension was made of Iran? Why did the Europeans start by asking for an extra legal demand from Iran? And why did they want to make sure that Iran is bound by law (i.e. the Security Council) to eventually abandon its enrichment program, which you said Iran has a right to pursue? Was it because ultimately Europeans did not want Iran to have a national peaceful nuclear program? Do you regret having reported Iran to the Security Council while you could have solved the problem diplomatically with your European, IAEA and Iranian colleagues?

Jenkins: The West did not want Iran to have an enrichment capability. That is why the Security Council made a legally binding “demand” (which was indeed the first such demand). The Council is entitled to over-ride Iran’s or any other state’s treaty rights in the interest of maintaining the peace.

I do not regret it because at the time I believed Iran wanted to acquire nuclear weapons and I saw suspension as a way of preventing Iran from acquiring the enrichment capability it would need to manufacture these weapons, since EU/Iran diplomacy had failed. Now I see things differently, because since 2005 US and Israeli intelligence experts have said they have no evidence that Iran’s leaders have decided to make nuclear weapons. I believe that a change of threat assessment requires the West to change its policy response. Instead, to my regret Western policy-makers remain stuck in a groove, like a gramophone needle on an old record.

Shafaie: Going back to the issue of the Security Council and the UN Chapter VII which has been used by the Council’s permanent members to impose sanctions on Iran; do you think that such usage has been legitimate?

Jenkins: Well this is a very interesting point. If you read very carefully Chapter VII, Article 39 suggests that the first thing the Security Council should do when a new issue is brought to its attention - the way the Iranian issue was brought to its attention in 2006 - is to determine whether this issue represents a threat to the peace. I don’t know, because I wasn’t serving in New York, whether the Security Council ever debated whether the situation with regards to Iran’s nuclear program represented a threat to the peace. But if they did debate it they clearly did not come to a conclusion, because none of the resolutions on Iran contains a determination that Iran’s nuclear activities represent a threat to the peace. Whereas if you read the resolutions of the Security Council on North Korea’s nuclear case, they all say that what North Korea has been doing is a threat to the peace.

In the absence of a ‘threat to the peace’ determination, it is questionable whether the Security Council was entitled to adopt binding measures under Article 41. Because if you read the Chapter, Article 39 appears to lead to Article 41 and if you have not taken action under Article 39 it is questionable whether you should be taking action under Article 41.

Shafaie: Now in the light of what you just said and according to the letter of the UN Charter, do you think that the sanctions against Iran by the Security Council are legal? How could the Security Council issue Resolution 1696 against Iran (which demands suspension for the first time) without ignoring the UN Charter? And didn’t the Europeans know that this was going to happen when they reported Iran to the Security Council? How are we supposed to deal with all these contradictions? 

Jenkins: Well, the EU countries brought Iran to the Security Council to make suspension mandatory. They believed the Security Council could do that using the powers conferred on it under Chapter VII, since at the time they believed that Iran’s enrichment programme represented a threat to the peace. I do not know whether they still believe that. If they do, they seem to have been unable to persuade all members of the Council to share that view.

Shafaie: Doesn’t that make the Security Council Resolutions (and in effect UN sanctions) on Iran illegal?

Jenkins: The view of most British legal experts is that the Security Council ultimately can do what it wants. The Security Council is like a parliament: it is a sovereign body and if it chooses to ignore its own rules it can do so. So say these legal experts. I am not a legal expert and so I have to accept that these resolutions are “legal”. I feel entitled to say, however, that the absence of a determination under Article 39, that Iran’s nuclear activities constitute a threat to the peace, makes me ask myself whether the use of Chapter VII to impose “international obligations” on Iran is really just, or whether it is not rather what we British call “sharp practice”.

Shafaie: Yes, I understand. We have even seen some nations who are permanent members of the Security Council who themselves circumvent the Security Council as we saw in the case of Iraq. They felt entitled to invade Iraq in 2003 even without a Security Council resolution, so we have seen that the Security Council even circumvents its...

Jenkins: Its own rules!

Shafaie: So there is a huge level of double standards and hypocrisy that we see in international law in general; why should Iranians feel obliged to abide by these rules?

Jenkins: They clearly haven’t felt obliged, since they have ignored the Security Council resolutions.

Shafaie: Yes, but they still allow IAEA inspectors into the country. In fact a few days ago [29 January 2012] a delegation of IAEA inspectors went to Iran and I would like to ask you something about that. The delegation was led by Mr Nakaerts and four other IAEA officials. Mr Nakaerts was someone who helped write the November Report, after visiting the Natanz facility and Fordow and the Heavy Water plant in Arak and conducting hours of inspection in Iran. But at the end when he wrote the report it was more in line with the American policies and allegations against Iran and he used outdated information which were provided to the IAEA by an unnamed state, namely Israel.

So the question is how do you see the IAEA in terms of being professional and unbiased; given the importance of Iran’s nuclear case and the urgent need for some confidence building measures especially on the side of the IAEA?

Jenkins: I think you are a bit unfair on Mr Nakaerts because if you read the November Report it does not say that anything wrong has taken place at Natanz or Fordow, and the report says yet again that all the nuclear material declared by Iran has been accounted for, which means that there has been no diversion.

And can I just open a bracket? We were talking earlier about the Additional Protocol. While I understand why the Majles [Iranian parliament] did what it did in 2006 [stopped applying the Additional Protocol], I very much regret what they did because if Iran had continued to apply the Additional Protocol I think it is very likely that by now the IAEA would have had to report that there are no undeclared nuclear material or nuclear activities in Iran. The IAEA can only make that finding when the Additional Protocol is in force, otherwise it does not have enough access to make that finding. For Iran, that finding would be very valuable because it would be so much harder for Iran’s enemies to claim that Iran is bent on making nuclear weapons if the IAEA had announced to the world that there are no undeclared nuclear activities or material in Iran.

Note as well that what all the fuss is about now, and what the November Report fuss was about, are certain studies that are alleged to have taken place. Those studies are not “nuclear activities”, they are “nuclear-related activities”; in other words they fall outside the scope of NPT Safeguards. So uncertainties over those studies ought not to have prevented the IAEA from finding that there were no undeclared nuclear activities in Iran.

Shafaie: But would this satisfy the Security Council and Germany? Or would they still demand suspension? Something which Iran cannot and will not (and does not have to) accept?

Jenkins: Maybe not. I am not saying it would. All I am saying is that it would be harder to argue that Iran is somehow violating the NPT - and represents a threat to all and sundry, is going to trigger a nuclear arms race in the Middle East, and whatever else Iran’s enemies love to throw into the pot - if there were a public assurance from the IAEA that there are no undeclared nuclear (as opposed to “nuclear-related”!) activities or material in Iran.

Shafaie: So while we are talking about this I would like to mention the issue of leaking of the IAEA information to third parties. Many Iranians believe that this has been the main reason for assassination of Iranian scientists. When the IAEA team arrived in Iran on January 29 of this year, a large group of Iranians and Iranian students gathered at the airport while holding pictures of the recently assassinated Iranian scientist, Mostafa Ahmadi Roshan. They were trying to put pressure on the Iranian officials to bring this issue to the attention of the IAEA inspectors. And while Iranian officials are trying to keep the environment professional, they are under a lot of pressure from the Majles and student unions. For example, four large student unions issued a letter demanding to meet with the IAEA inspectors to talk about this.

So what confidence building measures has the IAEA taken to build confidence on its own side? And do you think that these concerns on the Iranian side, that IAEA leaks information to third parties, are valid or reasonable?

Jenkins: I think one is not entitled to assume that the IAEA leaks information. One needs evidence before one can make these accusations. From what you have told me, people are simply making a connection. They are saying that these scientists were known to the IAEA and these scientists have been murdered, therefore the IAEA must have leaked information.

Shafaie: But their names have appeared in the IAEA reports! And it is no secret that Israel and the US provide the IAEA with “intelligence” and many suspect that in return they benefit from the intelligence that the IAEA provides for them. In fact one reason that Iran is reluctant to adopt the Additional Protocol again is that it does not want to provide Israel with the exact information that it would need to attack Iran’s nuclear facilities.

Jenkins: I see. But maybe they were already known independently of the IAEA. I mean, we must not be naive; certain countries have their intelligence agencies focused on what’s happening in Iran. We cannot be certain that those countries were not capable of finding out for themselves that these scientists worked for the Iranian nuclear program. So I think that it is better to keep the IAEA out of this because, if we are ever going to emerge from this crisis peacefully, the IAEA’s role is going to be crucial. We will only be able to persuade the West to accept enrichment in Iran if the IAEA is allowed to monitor Iran’s nuclear program and to reassure the rest of the world that Iran is not cheating on its NPT obligations. So it is not helpful to undermine the IAEA or to spread distrust of the IAEA.

I have given you a frank answer. That said, I do not approve of the assassinations, I am sure you realise that. In fact I call them murders, I call them murders!

Shafaie: Of course. Just one more thing on this issue; don’t you think that the IAEA or the UN Security Council should have at least vocally condemned these acts [of assassination and sabotage] in order to support public opinion inside Iran which is putting pressure on their politicians and officials, saying the IAEA is being silent on this issue?

Jenkins: I don’t really think it is for the IAEA to pronounce on something like that because it is not a political body, it is a technical body. But the UN Security Council certainly could, if it wanted to, pronounce on that and, personally I would have been happy to see them do so. Maybe what they would say is that they lack evidence for who was responsible. But you could deplore a murder without blaming anyone in particular. You could say that you have noticed that this murder has taken place and you deplore it.

Shafaie: You mention that the IAEA is not a political entity. But we read in reports by The Guardian, which refer to the American diplomatic cables, that Mr Yukiya Amano is “solidly in the US court on every key strategic decision” including on Iran’s nuclear program. What do you think about that? And how can that jeopardise the IAEA status as a professional and unbiased entity?

Jenkins: Well, I think that diplomats often imagine that people to whom they have been talking to are more sympathetic to their point of view than they really are. So the fact that an American diplomat reported that Mr Amano was sympathetic to the American position is not for me adequate evidence that he is. I knew Mr Amano when I was still serving; I worked alongside him and I never saw any sign that he was anything other than a loyal employee of the Japanese government. So I think that his first loyalties have always been to Japan but now that he is the head of an international organisation, I suspect that his first loyalties are to that organisation.

I nonetheless have questions in my mind about the report which the IAEA produced in November. I think that it is very difficult to form a judgement about the validity of the findings it contains because the IAEA secretariat do not spell out in sufficient detail where the information they are using has come from. And it is that failure to make clear where the information has come from that makes the objective and impartial reader a little uneasy. Because one can imagine that certain countries may be trying to use the IAEA for their own purposes.

Shafaie: Namely Israel; would you agree with that?

Jenkins: I haven’t been a diplomat for 33 years for nothing, so I am not going to answer that!

Shafaie: Now a question that I am particularly interested in. The NPT provides for a withdrawal option. You can give three months notice and come out of the NPT.

Jenkins: Yes, exactly,

Shafaie: And North Korea in fact has used that option. One reason that Iran still remains a signatory to the NPT is because it does not want to give ample excuse to some countries who are more than ready to attack Iran to say: “look Iran has come out of the NPT so they certainly have a nuclear weapons program”. But in the disastrous event that there is an attack against Iran, many speculate that Iran would actually withdraw from the NPT, because there is no reason for it to remain a signatory where there is already an attack (considering that Iran does not currently benefit from any of the other aspects of the NPT, for example in terms of cooperation and knowledge sharing in the peaceful nuclear energy field).

What do you think Iran’s withdrawal would mean for the NPT in general as a meaningful treaty? Do you think that would lead to the collapse of the whole concept of the NPT if there is an attack against Iran?

Jenkins: I hope not. I think provided Iran could point to a threat to its supreme interests it is entitled to withdraw from the NPT, and I think many NPT parties, if they saw that there was a genuine threat to Iran’s supreme interests, would not necessarily be shocked. Therefore, they would not themselves feel that the NPT was worthless. What would be a very serious blow to the NPT would be if Iran were to withdraw in the absence of a real threat to Iran’s supreme interests, which is in effect what North Korea did. When North Korea withdrew, there was no threat to North Korea from anyone and certainly not a threat to North Korea’s supreme interests. So that was a very cynical use of the withdrawal clause by North Korea. I hope Iran would never make such cynical use of the withdrawal clause.

Shafaie: Yes, and let’s also hope that there is no threat to Iran’s supreme interests either! Following on that note, you know that there is a religious decree in Iran, a Fatwa, which bans the production, stockpiling and use of nuclear weapons and any weapons of mass destruction for that matter, by the Iranian supreme leader. That came in 2005 when you were serving at the IAEA. And this Fatwa does not provide for a withdrawal option. Of course this Fatwa is not a part of international law but it is an indigenous religious decree which carries a lot of importance and is legally binding for Iranians.

So how was this announcement by the Iranian Supreme Leadership reflected at the IAEA? And why was that rejected or dismissed by the so-called international community? This is while other statements by lower ranking Iranian officials, are constantly twisted, mistranslated and then magnified in the media to portray an aggressive or irrational picture of Iran.

Jenkins: You know the West well enough to know how secular we have become. We find it hard to believe that the Guardians of the Islamic Revolution would be deterred by a religious injunction like a Fatwa. I only began to realise the significance of the Fatwa when an Iranian diplomat explained to me that because the Supreme Leader has issued this Fatwa, if the Guardians, for instance, were to ignore the Fatwa this would tend to undermine the authority of the Supreme Leader. So I now understand that the Fatwa does not just have religious significance, it actually has very real political significance. Not enough people in the West understand that.

Your last point, however, is very fair. Some in the West exaggerate the importance of statements that bolster their claims and allegations and ignore statements that point in an unwelcome or inconvenient direction. I have no patience for that kind of dishonesty. Still, if I were an Iranian leader I would try to make the lives of these Westerners harder by refraining from ever making statements that could potentially be construed as “aggressive” or “irrational”. In fact I would try to confound them by taking an initiative that the world’s media could not ignore and that was a clear indication that in future Iran will always remain committed to its NPT obligations.

Shafaie: Finally, can you please tell me what motivates you to engage in a discussion on Iran’s nuclear case now that you are not working with the IAEA anymore?

Jenkins: I fear Western mis-handling of this problem could lead to a war, involving the loss of many innocent lives and a detrimental effect on global living standards. I am far too unimportant a person to prevent that. But at least, if I speak my mind, drawing on all the knowledge and experience I have had a chance to acquire through my service as a diplomat, a few important people may notice and start to think again about whether existing Western policies are as wise as they could be.

I am also reacting against the twisting of truth and the indifference to reason that I see in certain influential quarters. I believe that truth and reason lie at the heart of our civilisation, and that they must be fought for (metaphorically) if our civilisation is to survive and prosper.

Shafaie: Mr Jenkins, thank you very much for sharing your views with us. 

With special thanks to Farid Marjai and CASMII.org for arranging this interview.