A Matter of Intent

Global Security Newswire recently reported that "a British expert is calling on the international community to more effectively discourage the proliferation of nuclear weapons by punishing any and all breaches of agreed safeguards, without first trying to determine intent" (Elaine M. Grossman, "Proliferation Analyst Discourages Focus on Intent," 10 April 2008, http://www.nti.org/d_newswire/issues/2008_4_10.html#174E9315). James Acton, of King's College in London, says that "international sanctions—whether enacted through the IAEA Board of Governors or the [U.N.] Security Council—should be based on what a noncompliant state has done, not on why it acted."

Punishing states based on demonstrated violations rather than intent would have some advantages. For one thing, it would greatly simplify the enforcement of nonproliferation standards. The early stages of a nuclear weapons development program almost always appear identical to the early stages of a civilian nuclear energy development program: either the extraction, processing, and enrichment of uranium or (more rarely) the reprocessing of spent nuclear fuel from a civilian reactor in order to recover plutonium. Because of the "dual use" nature of these activities, it is often unclear whether states' nuclear efforts are meant for civilian or military purposes.

However, there are reasons for which judicial systems all over the world consider intent when rendering verdicts and imposing sentences. First, demonstration of intent is often necessary to prohibit undesirable activities. For example, if two people are out hunting and one shoots at the other, trying to kill him, then it would be very hard for a prosecutor to get a conviction without demonstrating intent. If the shooter were trying to hit a deer, then he was hunting; if he were trying to hit his friend, then he was committing attempted murder.

This has direct application for nuclear nonproliferation. The famous "loophole" of the Nuclear Non-Proliferation Treaty (NPT) allows countries to develop various aspects of the nuclear fuel cycle, becoming what some call "virtual nuclear weapons states," able to develop nuclear weapons on relatively short notice. (There is a debate over the extent to which the NPT allows or even requires access to the full nuclear fuel cycle; however, since Japan engages in both uranium enrichment and spent fuel reprocessing, there seems to be little disagreement that non-nuclear weapon states are at least in general allowed to engage in all aspects of the cycle.) If we ignore intent, then these "virtual nuclear weapons states" may develop uranium enrichment and plutonium recovery technology only to withdraw from the NPT and then complete the relatively easy remaining steps to develop nuclear weapons. In fact, that is almost exactly what North Korea did before detonating its first nuclear device in 2006.

Second, judicial systems consider intent in order to determine sentences. Clearly the person who speeds because his wife needs to get to the hospital in order to give birth should not be given the same sentence as the person who speeds because he is drag-racing. (I actually believe that some legal codes waive speeding penalties in case of medical emergency, but you get the point.) Acton says that "if I was a state that was out developing nuclear weapons at the moment, I would take away from all of this is that if I ever get caught by the IAEA, what I should do is I should play the motives card. The best way of . . . avoiding sanctions will be to say . . . 'I didn’t break the rules because I'm building a nuclear weapon. I broke the rules because I'm worried that if I declared my enrichment program, then I would get bombed by some other state.'" (That, of course, was basically Iran's argument when its clandestine nuclear program was discovered.) However, I doubt that such an argument would convince a reasonable jury to reduce the defendant's sentence significantly. A truly objective jury might not even buy the story at all, depending on the specific circumstances.

Third, judicial systems consider intent in order to avoid punishing parties who violated laws through no fault of their own. For example, if driver A rear-ends driver B, causing driver B to rear-end driver C, then clearly driver B should not be held legally at fault. Similar things happen with international nonproliferation treaties. For example, Albania signed the Chemical Weapons Convention in 1993, and the treaty came into force in 1997. Several years later (sources variously give 2002, 2003, or 2004) the government discovered a cache of chemical weapons acquired by a previous government, probably in the mid-1970s (although no documentation was found to indicate exactly how it was acquired). The government immediately reported the discovery to the Organization for the Prohibition of Chemical Weapons and destroyed the entire stockpile by 2007. Although the country was technically in violation of its treaty requirements from 1997 until at least 2002, no reasonable person would suggest that the government should be faulted for this incident. Similar concerns exist with the NPT. For example, if the North Korean government collapsed and the country were unified under the Republic of Korea's (ROK's) government, what would happen to the North's nuclear arsenal? If it remained on Korean soil, even temporarily, then the ROK (now exercising sovereignty over the entire peninsula) might be considered in violation of its NPT obligation not to possess nuclear weapons. Nevertheless, few reasonable people would want to punish Seoul for such a technical, unintentional violation of the treaty. (In fact, many people would probably be happy for Seoul to take possession of and secure the "loose nukes," at least until they could be disposed of in an appropriate manner.)

Acton does make a couple of interesting arguments against considering intent. First, he points out that under the current system, influential countries can get charges against their friends dismissed. He is right in claiming that South Korea "conducted undeclared reprocessing experiments that were, in both the letter and the spirit, contrary to the safeguards agreement with the IAEA. It should have been found in noncompliance with its safeguards agreement and it should have been punished appropriately." However, the appropriate solution for such problems is to convince states that applying nonproliferation standards impartially is in their long-term interest, not to reform the enforcement process to disregard intent.

Second, Acton believes that discussion of intent obscures clearly demonstrable violations of international legal prohibitions. According to the article, "Acton suggested that such discussions divert critical attention away from Tehran's actual conduct in violation of international law." Had the United States, Britain, and France "stopped talking about intent so much in the Board of Governors and the IAEA, it would have been much harder for China and Russia, for instance, to jump on the intent bandwagon," Acton said. "If our argument had been Iran should have sanctions enacted on it because it's violated its safeguards agreement, the argument would have been a much stronger one over the long run."

It is true that Iran violated its safeguards agreement, but the United Nations already imposed (relatively weak) sanctions on Tehran for that infraction. Acton is missing the point of why intent forms such an integral part of the Bush administration's case against Iran: demonstrating violation of a safeguards agreement generates a slap on the wrist, while demonstrating intent to develop nuclear weapons is what could potentially generate support in the Security Council for real measures against Iran. That is why the Bush administration is, for example, making a big deal out of Iran's development of long-range missiles; although their development violates no legal prohibition, it provides evidence of Iran's intention to develop nuclear weapons (since conventional explosives make a poor choice of warhead for them).

I do not mean to claim that the current system is perfect; far from it. However, other fixes, similar to certain measures used in the U.S. legal system, are more appropriate. For example, Congress provides sentencing guidelines for federal courts. The United Nations Security Council could do something similar for violations of the NPT, suggesting appropriate ranges of sanctions for certain infractions.

Similarly, Congress delegates some lawmaking authority to the executive branch; for example, the Food and Drug Administration is allowed to impose certain requirements on food producers and drug manufacturers. The Security Council could delegate some enforcement capability to the IAEA, rather than requiring it to refer violations to the council for action. The IAEA could, then, impose minor penalties for relatively minor violations on its own; more significant violations, requiring larger penalties, would still be referred to the council.

Such reforms could greatly improve enforcement of the NPT. Simply ignoring intent would be a mistake.