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Protecting Nuclear Facilities from Military Attack: Prospects After the Gulf War

Published online by Cambridge University Press:  27 February 2017

Burrus M. Carnahan
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American Journal of International Law , Volume 86 , Issue 3 , July 1992 , pp. 524 - 541
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Copyright © American Society of International Law 1992

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References

1 U.S. Claims Iraqi Reactors Hit Hard; Saddam Minimizes Losses, Shows Off POWs, Wash. Post, Jan. 21, 1991, at Al; cf. U.S. Says Iraqi Reactors Hit; No Confirmation From Baghdad, Nucleonics Wk., Jan. 24, 1991, at 1.

2 See, e.g., U.N. Aides Discover Atom Arms Center Concealed by Iraq, N.Y. Times, Oct. 8, 1991, at Al; Reassessing Iraqi Nuclear Capability, Wash. Post, July 10, 1991, at A16.

3 See SC Res. 687 (Apr. 8, 1991), reprinted in 30 ILM 846 (1991). The International Atomic Energy Agency is a part of the United Nations system of international organizations. Its purposes include encouraging research, development and practical applications of atomic energy and administering “safeguards designed to ensure that special fissionable and other materials, services, equipment, facilities and information … are not used in such a way as to further any military purpose.” Art. 111(A), Statute of the International Atomic Energy Agency, Oct. 26, 1956, 8 UST 1093, TIAS No. 3873, 276 UNTS 3.

4 See Executive Chairman of the Special Commission established pursuant to Security Council Resolution 687, Report, UN Doc. S/23165, at 21–24 (1991) [hereinafter Special Comm’n Report]; Iraq’s Bomb Program: A Smoking Gun Emerges, 254 Science 644 (1991); Inspectors Find Four Calutron Enrichment Plants in Iraq, NuclearFuel, July 22, 1991, at 6; cf. U.N. Told of Iraqi Effort To Hide Nuclear Project, Wash. Post, July 31, 1991, at Al. Uranium is enriched by increasing the proportion of the isotope U-235. Natural uranium is composed of approximately 99.3% U-238, which is not usable in a weapon, and only 0.7% U-235, which is. For weapons pur poses, uranium should be highly enriched, i.e., to contain 90% or more U-235. See, e.g., Mitchell Reiss, Without the Bomb 273–74 (1988). Iraq experimented with at least three methods of enrichment but devoted most of its resources to electromagnetic separation (“calutron”) enrichment, a method the United States abandoned after World War II as too expensive and inefficient. See Iraqi Atom Effort Exposes Weaknesses in World Controls, N.Y. Times, July 15, 1991, at Al. For a description of calutron technology and the U.S. calutron program in World War II, see Richard Rhodes, The Making of the Atomic Bomb 487–92, 600–01 (1986).

5 See Allied Bombing of Iraqi Reactors Provokes No Safeguards Debate, Nucleonics Wk., Jan. 31, 1991, at 1 [hereinafter Allied Bombing]; U.S. Says Iraqi Reactors Hit, supra note 1, at 10.

6 Treaty on the Non-Proliferation of Nuclear Weapons, July 1, 1968, 21 UST 483, TIAS No. 6839, 729UNTS161.

7 Article III, paragraph 1 of the Non-Proliferation Treaty, id., requires each non-nuclear-weapons state party to the Treaty to enter into an agreement with the IAEA placing its “peaceful nuclear activities” under IAEA safeguards, “for the exclusive purpose of verification of the fulfillment of its obligations assumed under [the] Treaty with a view to preventing diversion of nuclear energy from peaceful uses to nuclear weapons or other nuclear explosive devices.” The IAEA Board of Governors found Iraq to be in violation of its safeguards agreement on July 19, 1991, and the IAEA General Conference reached the same conclusion on September 20, 1991. See IAEA Condemns Baghdad Again As Iraq Protests ‘Double Standard’, Nucleonics Wk., Sept. 26, 1991, at 11. On August 15, 1991, the UN Security Council condemned Iraq’s noncompliance with its safeguards agreement, “which constitutes a violation of its commitments as a party to the Treaty on the Non-Proliferation of Nuclear Weapons.” SC Res. 707 (Aug. 15, 1991).

8 Nuclear reactors are not involved in the manufacture of enriched uranium. See Leonard S. Spector, Nuclear Ambitions 417–20 (1990); Reiss, supra note 4, at 273–74. This was the fuel Iraq intended to use in its nuclear weapons. See Iraq’s Bomb Program, supra note 4. Reactors are, however, necessary to produce a plutonium-fueled bomb. Plutonium is an artificial element produced when a uranium-fueled reactor operates. The Iraqis extracted 2.26 gm. of plutonium from a fuel rod not under IAEA safeguards, and illegally reprocessed 3 gm. of plutonium from safeguarded reactor fuel. See Special Comm’n Report, supra note 4, at 21–22. This is about 1/600 of the amount they would need to make a bomb. Cf Reiss, supra, at 274–75. This reprocessing appears to have been a labora tory-scale experiment (albeit an illegal one) rather than an effort to produce a plutonium bomb. At this production rate, “it would take years to make one bomb.” Baghdad Reveals It Had Plutonium of Weapons Grade, N.Y. Times, Aug. 6, 1991, at Al, A5 [hereinafter Baghdad Reveals]. The UN and IAEA inspectors found no large-scale reprocessing facilities comparable to the massive uranium en richment effort. It may be speculated that the Iraqi reprocessing experiment was part of a back-up to the uranium enrichment program.

9 Israeli air force F-16s bombed the Osirak reactor at Tuwaitha on June 7, 1981. See Study on the Consequences of the Israeli Armed Attack Against the Iraqi Nuclear Installations de Voted to Peaceful Purposes, UN Doc. A/38/337 (1983) [hereinafter UN Study]; Allied Bombing, supra note 5, at 1. On June 19, 1981, the Security Council condemned the attack as a “clear violation of the Charter of the United Nations and the norms of international conduct.” SC Res. 487 (June 19, 1981), discussed in text at note 77 infra. See W. Thomas Mallison & Sally V. Mallison, The Israeli Aerial Attack of June 7, 1981, Upon the Iraqi Nuclear Reactor: Aggression or Self-Defense?, 15 Vand. J. Transnat’l L. 417 (1982).

10 See Mallison & Mallison, supra note 9, at 435–36.

11 SC Res. 678 (Nov. 29, 1990), reprinted in 29 ILM 1565 (1990). SC Res. 660 (Aug. 2, 1990), reprinted in id. at 1325, demanded that “Iraq withdraw immediately and unconditionally” from Kuwaiti territory.

12 See SC Res. 687, supra note 3.

13 See notes 4 and 8 supra.

14 See In re Goering, Case No. 92, 1946 Ann. Dig. 203 (International Military Tribunal, Nurem berg, Germany).

15 SC Res. 83 (June 27, 1950).

16 See Robert F. Futrell, The United States Air Force in Korea 1950–1953, at 183–87 (U.S. Air Force, Office of Air Force History, rev. ed. 1983).

17 See id. at 186.

18 See id. at 475–82.

19 Id. at 494.

20 See id. at 488–89.

21 See Allied Air War Struck Broadly in Iraq, Wash. Post, June 23, 1991, at Al.

22 Gorbachev Says War Risks Going Too Far, Wash. Post, Feb. 10, 1991, at A23.

23 Yoram Dinstein, War, Aggression and Self-Defence 134 (1988).

24 See, e.g., Howard S. Levie, Prisoners of War in International Armed Conflict 25 (U.S. Naval War College Int’l Law Studies, vol. 59, 1978); cf. Conditions of Application of Rules, Other Than Humanitarian Rules, of Armed Conflict to Hostilities in Which United Nations Forces May be Engaged (resolution of the Institute of International Law, Aug. 13, 1975), in The Laws of Armed Conflicts 907 (Dietrich Schindler & Jirí Toman 3d rev. ed., 1988) [hereinafter Schindler & Toman]; Conditions of Application of Humanitarian Rules of Armed Conflict to Hostilities in which United Nations Forces May be Engaged (resolution of the Institute of International Law, Sept. 3, 1971), in id. at 903.

25 See U.S. Dep‘t of Defense, Conduct of the Persian Gulf Conflict: An Interim Report to Congress, at 12-2–12-5 (1991).

26 See Regulations Annexed to Hague Convention Respecting the Laws and Customs of War on Land, Oct. 18,1907, Art. 23(g), 36 Stat. 2227, TS No. 539; cf. 2 Georg Schwarzenberger, International Law as Applied by International Courts and Tribunals 128–36 (1968). The International Military Tribunal at Nuremberg held that by 1939 the Hague Regulations reflected customary international law. In re Goering, 1946 Ann. Dig. 203.

27 Cf. Report of the United States Agent, in 6 Papers Relating to the Treaty of Washington 52–55 (1874).

28 See 2 Schwarzenberger, supra note 26, at 363; Julius Stone, Legal Controls of Interna Tional Conflict 591 (1954).

29 See 2 Schwarzenberger, supra note 26, at 385; Stone, supra note 28, at 603–07.

30 See Stone, supra note 28, at 623–24.

31 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protec tion of International Armed Conflicts, opened for signature Dec. 12, 1977, 1125 UNTS 3 [hereinafter Protocol I]. For the background and negotiation of the Protocol, see George H. Aldrich, New Life for the Laws of War, 75 AJIL 764 (1981).

32 Protocol I, supra note 31, Art. 52(1).

33 See U.S. Dep’t of the Air Force, International Law—The Conduct of Armed Conflict and Air Operations, at 5-8–5-9 (Air Force Pamphlet No. 110-31, 1976).

34 Frits Kalshoven, Constraints on the Waging of War 90 (1987). Professor Kalshoven was a member of the Netherlands delegation to the international conference that negotiated the Protocol.

35 Michael Bothe, Karl Josef Partsch & Waldemar A. Solf, New Rules for Victims of Armed Conflicts 324 (1982). Mr. Solf, author of the comentary on Article 52, was a member of the United States delegation to the international conference that negotiated the Protocol.

36 Id. at 324–25. Cf. the following statements of understanding to Protocol I made by the United Kingdom at the time of signature:

that the military advantage anticipated from an attack is intended to refer to the advantage anticipated from the attack considered as a whole and not only from isolated or particular parts of the attack; …

that a specific area of land may be a military objective if, because of its location or other reasons specified in … Article [52], its total or partial destruction, capture or neutralisation in the circumstances ruling at the time offers a definite military advantage.

Schindler & Toman, supra note 24, at 717.

37 See W. Hays Parks, Air War and the Law of War, 32 Air Force L. Rev. 1, 139 (1990).

38 Letter to John Hollins (Feb. 19, 1809), in Thomas Jefferson, Writings 1200, 1201 (Library of America ed., 1984).

39 Passport for Captain Cook (Mar. 10, 1779), in Benjamin Franklin, Writings 926, 927 (Library of America ed., 1987). Franklin’s rule was later reflected in Article 4 of the Hague Convention Relative to Certain Restrictions with regard to the Exercise of the Right of Capture in Naval War, Oct. 18, 1907, 36 Stat. 2396, TS No. 544, which provided that “[v]essels charged with religious, scientific or philanthropic missions are … exempt from capture.” For a modern parallel, see Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, Jan. 27, 1967, Art. V, 18 UST 2410, TIAS No. 6347, 610 UNTS 205 (the parties “shall regard astronauts as envoys of mankind in outer space and shall render to them all possible assistance in the event of accident, distress or emergency landing”).

40 Instructions for the Government of Armies of the United States in the Field, General Orders No. 100 (Apr. 24, 1863), Art. 35, in Schindler & Toman, supra note 24, at 3, 8. On the influence of General Orders No. 100 on later codifications of the law of war, see Arthur Nussbaum, A Concise History of the Law of Nations 227 (1954).

41 See William H. McNeill, The Pursuit of Power 220 (1982).

42 See Wallace S. Hutcheon, Jr., Robert Fulton, Pioneer of Undersea Warfare 32–33, 52–53, 103–04 (1981).

43 See McNeill, supra note 41, at 278.

44 See, e.g., McNeill, supra note 41, at 357–59; see generally Rhodes, supra note 4.

45 Regulations Annexed to Hague Convention, supra note 26, Art. 27.

46 See Convention Concerning Bombardment by Naval Forces in Time of War, Oct. 18, 1907, Art. 5, 36 Stat. 2351, TS No. 542.

47 Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments, Apr. 15, 1935, Arts. 1, 5, 49 Stat. 3267, TS No. 899, 167 LNTS 279.

48 The Hague Convention on Cultural Property, May 14, 1954, 249 UNTS 240, thus covers only “scientific collections,” see id., Art. 1(a), and offers no protection to “buildings dedicated to … science,” see text at note 45 supra, or “scientific … institutions,” see text at note 47 supra. Cf. Parks, supra note 37, at 127–31 (arguing that scientists may have lost their status as protected civilians in wartime).

49 See U.S. Dep’t of the Air Force, supra note 33, at 5–10.

50 Draft Rules for the Limitation of the Dangers Incurred by the Civilian Population in Time of War, Art. 17, in Schindler & Toman, supra note 24, at 251, 256.

51 Protocol I, supra note 31, Art. 56.

52 Even if Article 56 had applied to the Tuwaitha reactors, the January 1991 attacks would not have been prohibited by it since little or no radioactivity was released as a result. See Allied Bombing, supra note 5, at 8.

53 See Letter of Transmittal (of Protocol II) from President Reagan, 81 AJIL 910 (1987) (reprinting S. Treaty Doc. No. 2, 100th Cong., 1st Sess., at III (1987)).

54 The chief U.S. negotiator of Protocol I responded to the Reagan administration’s arguments against its ratification in George H. Aldrich, Prospects for United States Ratification of Additional Protocol I to the 1949 Geneva Conventions, 85 AJIL 1 (1991). On Article 56, see id. at 12–13.

55 See Surprise May Be ‘Dirty Nuke,’ Wash. Times, Jan. 16, 1991, at Al.

56 See Inst, for Def. & Disarmament Stud., Arms Control Rep. 703.A.1 (Jan. 1991 Supp.) [hereinafter Arms Control Rep.].

57 Id. at 703.A.2.

58 Sweden, Working Paper, Proposals for parts of a Treaty Prohibiting Radiological Weapons and the Release or Dissemination of Radioactive Material for Hostile Purposes, Conf. on Disarmament Doc. CD/RW/WP.52, at 1 (1984) [hereinafter Working Paper].

59 Id. at 4, 6. The two research reactors at Tuwaitha would not have been protected by this proposal since they were only 5 megawatts and 500 kilowatts in size. See Allied Bombing, supra note 5, at 8. Reprocessing plants remove plutonium, produced during the operation of some types of reactors, from spent reactor fuel. Such plutonium can then be used as a reactor fuel itself, or to make nuclear weapons. See Spector, supra note 8, at 419.

60 Working Paper, supra note 58, at 6–7.

61 See Arms Control Rep., supra note 56, at 703.A.1.

62 Tests by Sandia National Laboratory, for example, suggest that a jet fighter could crash into a U.S. nuclear plant without penetrating the containment vessel. See id. at 703.B.23 (Oct. 1989 Supp.).

63 The early models of the Soviet VVER-440 power reactor, widely used in the USSR and Eastern Europe, were not designed to withstand earthquakes or airplane crashes; in addition, the high impurity content of the steel used for their pressure vessels has caused them to become brittle. See COMECON Safety Experts Urge Major Backfits at Old VVER-440s, Nucleonics Wk., Jan. 25, 1990, at 1–2.

64 For the background to the raid, see Leonard S. Spector, Nuclear Proliferation Today 165–78 (1984).

65 See id. at 177.

66 See UN Study, supra note 9, at 12.

67 See Allied Bombing, supra note 5, at 9; SC Res. 487, supra note 9.

68 UN Study, supra note 9, at 24.

69 See Spector, supra note 64, at 177.

70 See Spector, supra note 8, at 190.

71 See, e.g., Arms Control Rep., supra note 56, at 703.B.17 (Oct. 1987 Supp.) (discussion at Peaceful Uses of Nuclear Energy Conference, Mar. 1987), and 703.B.24 (Feb. 1990 Supp.) (UNGA resolution of Dec. 15, 1989, urging agreement to prohibit attacks); IAEA General Conference: Session Highlights, IAEA Bull., Winter 1985, at 59–60 (1985 IAEA General Conference resolutions).

72 See Nuclear Non-Proliferation Treaty, supra note 6, Art. VIII(3). The Treaty entered into force in 1970 and the first review conference was held in 1975. On the review conference procedure in general, see 2 Mohamed I. Shaker, The Nuclear Non-Proliferation Treaty 871–85 (1980).

73 See Nuclear Non-Proliferation Treaty, supra note 6, Art. X(2).

74 Compare Egypt, Working Paper on Articles III and IV of the Non-Proliferation Treaty, Non-Pro liferation Treaty Conf. Doc. NPT/CONF.III/30 (1985) with Iraq, Working Paper, Conf. Doc. NPT/ CONF.III/29 (1985).

75 Egypt, Working Paper on Articles III and IV of the Non-Proliferation Treaty, supra note 74, para. 5.

76 Final Declaration, Ann. I, Conf. Doc. NPT/CONF.III/64/I (1985), in UN Department of Disarmament Affairs, Disarmament Fact Sheet No. 43, The Third Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons 14, 19 (1985).

77 See UN Department of Disarmament Affairs, supra note 76, at 12–13.

78 See Charles N. Van Doren & George Bunn, Progress and Peril at the Fourth NPT Review Confer ence, Arms Control Today, Oct. 1990, at 8, 9; Laura Rockwood, Non-Proliferation Treaty 1990 Review Conference: Looking Towards 1995, 46 Nuclear L. Bull. 25, 32 (1990).

79 Report of Main Committee III, Conf. Doc. NPT/CONF.IV/MC.III/2, at 9 (1990); see also Rockwood, supra note 78, at 28.

80 SC Res. 487, supra note 9.

81 See Glenn T. Seaborg & Benjamin S. Loeb, Stemming the Tide: Arms Control in the Johnson Years 355–58 (1987).

82 See Nuclear Non-Proliferation Treaty, supra note 6, Art. VI; Seaborg & Loeb, supra note 81, at 366–70.

83 See Nuclear Non-Proliferation Treaty, supra note 6, Arts. IV, V; Seaborg & Loeb, supra note 81, at 358–66.

84 Security assurances to the non-nuclear-weapons states were not included in the Treaty text. Instead, they were addressed by a UN Security Council resolution (SC Res. 255 (June 19, 1968)), see Seaborg & Loeb, supra note 81, at 371–73; 3 Shaker, supra note 72, at 968, and by policy state ments of the nuclear powers setting forth the conditions under which each would undertake not to use nuclear weapons against non-nuclear-weapons states, see 2 id. at 479–96. For discussion of the legal status of these measures, see Edward McWhinney, The International Law of Detente 55–57 (1978).

85 See 2 Shaker, supra note 72, at 871–73; cf. Seaborg & Loeb, supra note 81, at 382–83.

86 See Nuclear Non-Proliferation Treaty, supra note 6, Art. X(2). The superpowers had wanted a treaty of unlimited duration. By insisting on a 25-year review, the smaller states “clearly implied that the duration of the treaty would be held hostage to the performance of the superpowers in keeping their commitments, particularly with respect to disarmament negotiations.” Seaborg & Loeb, supra note 81, at 381.

87 See, e.g., Van Doren & Bunn, supra note 78; Rockwood, supra note 78; Mohamed I. Shaker, The Third NPT Review Conference: Issues and Prospects, in Nuclear Non-Proliferation and Global Security 3 (David B. Dewitt ed., 1987) [hereinafter Nuclear Non-Proliferation]; Seaborg & Loeb, supra note 81, at 383–86.

88 See Lewis A. Dunn, The NPT and Future Global Security, in Nuclear Non-Proliferation, supra note 87, at 13; Hans Blix, In Search of Peace: The Non-Proliferation Treaty and the Work of the IAEA 5, 9, IAEA Doc. PI/C.6E (1985). Dr. Dunn was head of the U.S. delegation to the 1985 Review Conference. Dr. Blix is Director-General of the IAEA.

89 Statement by the Director-General, Dr. Hans Blix, Before the Board of Governors 5 (July 18, 1991), IAEA press release (n.d.). See IAEA Seeks Sharper Safeguards System After Finding Iraqi Violations, Nuclearfuel, July 22, 1991, at 6; cf U.N. Maps Plan to Nab Atomic Cheats, N.Y. Times, Oct. 11, 1991, at A10.

90 See supra text at and note 79.

91 See Nuclear Non-Proliferation Treaty, supra note 6, Art. III(1); cf. Jon H. Jennekens, The IAEA, International Safeguards and the NPT, in Nuclear Non-Proliferation, supra note 87, at 73, 81–83.

92 Spector, supra note 64, at 177–78; cf. David Fischer & Paul Szasz, Safeguarding the Atom 42–43 (1985).

93 See Baghdad Reveals, supra note 8, at A1.

94 See, e.g., Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, Art. 10, 6 UST 3516, TIAS No. 3365, 75 UNTS 287.

95 See, e.g., Draft Agreement Relating to Hospital and Safety Zones and Localities, Ann. I to id. See also Agreement on the Prohibition of Attacks against Nuclear Installations and Facilities, Dec. 31, 1988, India-Pak., reprinted in 44 Nuclear L. Bull. 62 (1989). Until recently, however, the parties to that bilateral agreement had not implemented the Agreement by exchanging lists of nuclear facilities to be protected. See India, Pakistan Say They’ll Give Nuclear Facility Locations in 1991, Nucleonics Wk., Nov. 7, 1991, at 10.

96 Protocol I, supra note 31, Art. 56(6).

97 For the special inspection problems raised by such plants, see Fischer & Szasz, supra note 92, at 51–53.

98 Plutonium produced by some reactor designs (e.g., those using graphite or heavy water as a moderator) is more suitable for weapons use than plutonium produced by other reactor designs (e.g., those using light water as a moderator). See Richard Wolfson, Nuclear Choices 221–24, 301 (1991); Reiss, supra note 4, at 274.

99 IAEA safeguards currently aim at “timely detection” of the diversion of a “significant quantity” of nuclear material from any safeguarded facility. “Significant quantities” are those containing enough fissionable material to enable the diverter to make a bomb (about 8 kg. of plutonium, or 25 kg. of 90% enriched uranium). The time necessary to convert fissionable material into a weapon varies with the form of the safeguarded material. The IAEA thus accepts that plutonium or highly enriched uranium in metal form, and that has never been irradiated in a reactor, can be converted into a weapon in a matter of 7–10 days. On the other hand, unenriched or low-enriched uranium would take about a year to convert into an explosive device. See Benjamin N. Schiff, International Nuclear Technology Transfer 118–19 (1983).

100 See Iraq Rushed to Move Material as Gulf Deadline Neared, Nucleonics Wk., May 2, 1991, at 16. One factor precipitating the 1981 Israeli raid on Tuwaitha may have been the early withdrawal, because of the Iran-Iraq War, of the majority of the French technicians whose continuous presence at the site was intended as an additional guarantee against diversion of nuclear material. By 1981, the few remaining French could no longer maintain constant surveillance of the nuclear material at Osirak. See Spector, supra note 64, at 177.

101 See Special Comm’n Report, supra note 4, at 22–23.