Iran, Nuclear Proliferation and International Law [S1-02]

Show Notes

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Music: “Insurrection”
Written by Pierre Chrétien
Performed by the Soul Jazz Orchestra
Courtesy of Do Right Music Inc.

Transcript

William Sinclair
Welcome to Why Can’t They Just, looking at politics, policy and getting stuff done. My name is William Sinclair, I’m a Labor member, member of Labor Environmental Action Network and with me is Janaline.

Janaline Oh
I’m Janaline Oh, I’m a former diplomat and also a member of the Labor Party and the Labor Environment Action Network.

Before we start, I’d like to acknowledge that we are both recording this on unceded Aboriginal land, and I would like to pay our respects to elders past and present, and any First Nations listeners that we have today.

William Sinclair
So we’re recording this episode on the 25th of June. We’re days out from the US strikes on Iran, allegedly the Iran nuclear sites where they’re trying to build nuclear weapons. And we’ve heard conflicting reports about the effectiveness of those strikes.

But I’ll start with the first question, Janaline. Why can’t the Albanese government just stay the hell out of this conflict and let whatever happens with these foreign countries and their weapons do what they’re going to do and just leave us out of it?

Janaline Oh
Yeah. So I don’t see how we’re not out of it. We’re not a participant. The Government has not suggested that it wants to get involved in any way at all. It has consistently called for de-escalation and diplomacy, which I think is exactly what we should be doing.

So I think the answer to that first question is that I think Australia is out of it. You know, we’re not really, we’re not even as much part of the global conversation on this as the European powers.

William Sinclair
Yeah, but I mean, there is this issue of the Albanese government, either yesterday or the day before endorsing Trump’s strikes on the Iranian nuclear base. What do you think about that?

Janaline Oh
Yeah, yeah. So I have been a very strong supporter of this government’s foreign policy. I think they have done a remarkable job in repairing a lot of relationships that the previous government damaged, with China, with the Pacific Islands, with France, with the rest of the European Union.

This is the first action that they have taken that I really, really think was a terrible mistake. We are not a major player in this. We don’t need to be a major player in this. It would have been perfectly legitimate from my point of view, for the Government to have said that Iran should not be allowed to have nuclear weapons. I don’t think that is particularly controversial. It would have been very reasonable to say Australia desperately urges everybody involved to negotiate to, to resort back to diplomacy and to de-escalate.

I do not think the Australian government needed to go that extra step to endorse the US actions.

William Sinclair
I don’t know what was gained by endorsing the strikes. There’s nothing that we won in a sense for ourselves. Lots was lost and not much was gained. And I don’t know what the reasoning was to endorse the strikes. Like what could be the positive argument for that?

Janaline Oh
So I would disagree that, you know, we’ve somehow irreparably damaged our relationship with Iran. Our relationship with Iran has been difficult for a very, very, very long time. So, I mean, it is of no surprise to Iran that Australia in this situation would tend to side with the US rather than with Iran. They would expect that. And I don’t think they particularly care, to be honest.

You know, we haven’t had a very constructive relationship with Iran for a very long time. I mean, we have sanctions on Iran. We implement and enforce UN sanctions against Iran. You know, we have loudly denounced their nuclear programmes, we have loudly denounced their human rights abuses of their own people.

William Sinclair
Well, I think it’s just going to look bad for Albanese’s legacy, for one thing, to endorse someone who’s going to be reviled in history. Australians don’t like Donald Trump. Australians have said at the ballot box that they really don’t like the Trumpy stuff, and yet it seems like Mr Albanese himself is leaning into it a bit.

Janaline Oh
I wouldn’t overstate it, right? I mean, honestly, this is not, I mean, it’s not like he’s rushing off and sending Australian planes to go and support these strikes, right?He’s not, you know, he’s made a couple of rhetorical comments that I think are very unhelpful. I don’t think in the scheme of things, and you know, look to be fair to the Government, the thing that they keep emphasising is the need for de-escalation, diplomacy and restraint.

William Sinclair
Sure.

Janaline Oh
And they have applied that to all sides. I think they did - as I said, I think they shouldn’t have endorsed it. I think it was particularly silly.

So what is good, is that after the US strikes, Iran obviously had to do something to retaliate. It chose to retaliate in the most de-escalatory manner possible. It attacked a US base in Qatar. It signalled clearly beforehand to both the US and Qatar that it was going to attack this base with this type of weaponry at this time to ensure that nobody got hurt. It was clearly a performative action to make a point that we are not just going to roll over, but it was clearly designed to be de-escalatory.

William Sinclair
And I, I think that’s sort of been what’s happened this whole time where Israel’s gone in and assassinated generals or assassinated the head of Hezbollah. What was his name again?

Janaline Oh
Hassan Nasrallah.

William Sinclair
Yeah, and Nasrallah, there we go. And assassinated people in Iran and bombed Iran and attacked Iran. And Iran, since October 7th, has seemingly taken everything they can to try and find an off ramp out of the escalation. So every time they bomb or every time they attack Israel, they sort of tell the Americans beforehand and the Americans shoot down the missiles and all this kind of thing. It just sort of seems to me like Israel is constantly prodding for war and Iran is constantly, in a way, trying to find an off ramp. Is that your sense as well?

Janaline Oh
No, I think you’re being far too kind to the Iranian regime. Like they have really ramped up very unhelpful rhetoric for years and years and years. They did strike Israel in a pretty comprehensive and meaningful way. They just didn’t succeed.

So I think Iran recognises the weakness of its position and so when it has really come to the crunch, they have got to a point where they have understood that they need to de-escalate.

William Sinclair
I’m not saying Iran’s been de-escalating because they’re nice people. I’m saying Iran is de-escalating because they’re the weaker party and an escalation’s going to be bad. This is not a ‘Iran’s great regime’.

Janaline Oh
Yeah, but I mean, to be fair, Iran has also escalated at times. I mean, Iran has also, you know, been funding Hamas and Hezbollah to basically, you know, commit acts of terror against Israeli civilians for years and years and years. So I don’t think it is fair to say that Iran is just, you know, a peaceful partner that is not like participating in aggressive behaviour.

But I think you are correct in saying that in recent times, when it has got to a certain point, the Iranians have then chosen to undertake essentially performative gestures to signal that we are going to retaliate, but we are also going to de-escalate. And I think that has been very helpful. And I think at this point, it was good that they did that because, you know, like, yes, Israel and the US could unquestionably obliterate Iran if they really wanted to.

That is not going to help World Peace. It is not going to help Israel to have peace in this region. There was a process by which Iran was not going to have nuclear weapons. And the other thing about the difference between diplomatic solutions and political solutions and military solutions is that military solutions can only take you so far.

Military solutions can take you to the point where all the parties need to sit down and negotiate a diplomatic solution. In terms of a country’s internal dynamics, military solutions can take you to a point where all the parties will sit down and come to a political solution. But it is only the diplomatic solutions and the political solutions that will stick because the kind of effort and resources that you have to put into essentially, you know, continually repressing people are just way too great and they increase over time.

William Sinclair
The Iranians have said they might, or the Iranians are threatened that they might close the Strait of Hormuz, blocking 20% of the world’s oil traffic, and they might get the Houthis to block the Red Sea. If they did that, what do you think would happen next?

Janaline Oh
Oh, I reckon that would be an extremely unfortunate choice, right? Because I think then you would probably get the US and also a bunch of other countries much more willing to take military action against both the Houthis and Iran. I think they would only do it as a kind of final kamikaze act because I think that’s exactly what it would be.

But the other thing that I would say for those people in Israel and the United States who are saying, oh, wouldn’t it be great if by doing this, destroying the nuclear capability and, you know, attacking Iran, we toppled the regime and then got something so much better?

Where I would have to say I think Donald Trump is probably smarter than those people is I think he understands that by toppling regimes, you don’t necessarily get anything better. I mean, the US was complicit in toppling a democratically elected government in Iran, in Iran in the 1950s. And that led to a pretty despotic monarchical regime, which then led to overthrow by the Islamic Republic. So arguably, the reason that Iran has the kind of government it has now is, you know, it can at least in part, be traced back to those actions by the UK and the US in the 1950s.

So I think, you know, I mean, Donald Trump is, I think, cognizant of the dangers that if you overthrow a regime, then you’re actually quite likely to get something pretty unpleasant in its place. And look at what happened in Iraq. You know, the idea - the Bush administration’s grand plan was to topple Saddam Hussein, a democratic, grateful democratic, you know, Iraq would emerge as a US ally in the region.

What did we get? Islamic State, what do we have now? Twenty years of basically violence, developmental, you know, economic catastrophe, impoverishment of people, abuse of human rights, sectarian animosity. It’s not great.

So I think, you know, I mean, I think I heard another US foreign policy analysts say that, you know, Donald Trump takes a sort of quite fatalistic approach where he sort of thinks that countries’ political systems are sort of black boxes from the point of view of the US and they just have to deal with whatever leaders those systems have thrown up. And it is not for the US to pass judgement on those regimes. And I think that is probably quite a good assessment of the way that he operates. So I don’t know that he is particularly in favour of regime change, notwithstanding, you know, some social media posts that he might have made in the last few weeks. He seems to have changed his mind.

But I think in any case, what these attacks have done is they have got people in Iran who were previously out in the streets rallying against the human rights abuses of their, you know, fairly odious government, are now in the streets rallying in support of the defence of Iran against Israel and the United States. I mean, how does that help the democratic project? Anyway, so I guess that comes again to this issue of effectiveness.

So I guess, if I could sort of do a little summary, I would say I think it was unfortunate that the Australian government endorsed this action. I don’t think it was lawful. I don’t think it was effective. I think it is likely to have been counterproductive. And I think the world is quite a lot less safe. And I would have preferred our government just to be a little bit more quiet and just keep calling for diplomacy and de-escalation.

I think it’s like nobody is safer. And I think this is actually the real risk of the Trump administration.

It is the fact that Thomas Friedman, who’s the New York Times columnist, you know, a considerable expert on foreign policy and particularly in the Middle East, said that part of the problem of the Trump administration’s approach to foreign policy is that they only think through the first order effects and what he meant by that was for example, on security agreements with Japan and Korea. He thinks well this is costing the US a lot of money. I don’t see a lot of benefit for the US’s own security spending this money to protect Japan and Korea. I am going to bully them and threaten them into paying more or I’m going to pull these troops out.

The first order effect to that is that Japan and Korea will probably and have said that they will pay more, so they have increased their contribution, right. But the second order effect is Japan and Korea are now thinking the US is a very unreliable ally. We cannot trust it to secure our - to guarantee our security into the future. And so maybe we should actually think the unthinkable and really unthinkable in the case of Japan of, you know, maybe we need to get nuclear weapons.

So then you get the third order issue where if Japan and Korea, if you start having nuclear proliferation throughout the region, then it raises the costs of - it raises the likelihood of miscalculation and it makes the US less safe.

So now Donald Trump is talking about building a multi trillion dollar Golden Dome over the United States, right? So this missile shield that Israel has, which has been pretty effective.

William Sinclair
It doesn’t work that well, the missile shield.

Janaline Oh
Well no, it has worked extremely well, right? It has worked extremely well in the face of, you know, pretty constant attacks from Hezbollah, from Hamas and from Iran in the past. But, OK, it’s not perfect. So the absolute barrage of missiles that Iran sent recently, actually, you know, quite a few of them got through because it had been degraded.

But the other thing is, look at the size of Israel. Israel is tiny. Having this kind of geographically based defence over Israeli airspace is not the same as the continental United States, right? Which is absolutely vast.

So the upshot is, Trump then has to look at investing in a multi trillion dollar defence thing instead of spending. A few, you know, maybe a couple of $100 million on having US bases to protect Japan and Korea.

So in saving some millions of dollars in protecting Japan and Korea, he has now made the US liable for trillions of dollars of continental US defence because he has increased the likelihood of catastrophic war around the world.

So I think this is basically, you know, his assessment of the limitations of the Trump doctrine, if you like. And I think in this case, my concern is that Australia in its own small and probably, you know in the grand scheme of things, not very significant way, endorsing that kind of behaviour I think has sort of contributed in a little tiny way to making us all less safe.

William Sinclair
The issue, the issue with the nukes or bombing the nukes is that Iran’s going to claim that they’re getting the nukes for self defence and deterrence, and then Israel’s going to claim that they’re going to bomb Iranian sites also for self defence to avoid getting nuked by the Iranians.

Janaline Oh
Yeah. So interestingly, Israel did a similar thing in 1981.

William Sinclair
Sure.

Janaline Oh
So it attacked a nuclear reactor that was under construction in Iraq on the basis that Iraq intended to use it to build nuclear weapons. And like Iran, Iraq had, you know, long expressed the view that Israel had no right to exist and that if Iraq got the opportunity, it would obliterate it. And so Israel argued that allowing Iraq to have nuclear weapons would enable it to build them and use them against Israel.

Interestingly, subsequent intelligence reports basically justified Israel’s claim that Iraq did in fact intend to use that reactor to eventually build nuclear weapons.

William Sinclair
Right.

Janaline Oh
But there was no evidence that they intended to use them specifically against Israel. And it is quite arguable that they actually wanted to, you know, keep them as a kind of deterrent to Israel attacking Iraq.

The UN Security Council, so interestingly, the UN Security Council in that case unanimously passed a resolution in 1981 condemning Israel for destroying that nuclear reactor.

So that included the United States in 1981. So I think that, I mean, that is a direct, I guess, analogy to the current situation where, you know, the International Atomic Energy Agency has found that Iran has probably enriched uranium to 60%, which is well beyond any kind of peaceful or civilian use. You would only enrich uranium to that level if your ultimate goal was to create a weapon.

William Sinclair
Yeah.

Janaline Oh
But it is not at all clear, firstly, how close Iran was to actually building such a weapon, and secondly, the Director of National Intelligence in the US testified to Congress under oath only a few weeks ago that US intelligence did not think that Iran was imminently planning to develop a nuclear weapon and that they they did not have evidence that the Iranian leadership had ordered the Iranian military to develop such a weapon.

Now, Donald Trump when confronted with this recently said, oh, they’re wrong. So, you know, the Director of National Intelligence, Tulsi Gabbard, has subsequently, you know, sent out a social media post saying, oh, you know, the fake media has misinterpreted me or something to that effect to contradict what she testified under oath to Congress.

You know, I mean, Israel and Donald Trump have not given the world any kind of evidence that shows that Iran was on the verge of creating a nuclear weapon. Israel has, Netanyahu has been claiming for at least the past decade that Iran is weeks or months away from developing a nuclear weapon.

I think this is something that at very best, let us assume that Iran was planning to develop a nuclear weapon. It was not imminent and there was a negotiating process underway at the time of the Israeli strikes.

William Sinclair
I just want to come around to effectiveness. There’s a leaked Intelligence report maybe yes- this morning that the leaked US intelligence that suggests that the bombing did minimal damage and it only set the Iranians back by a few months. So in terms of effectiveness…

Janaline Oh
I also saw reports of that leaked intelligence. I noticed that the Trump administration’s response was, oh, this is fake news, and also the press secretary, I think, added that this was a leak by a lowlife loser in the intelligence community.

William Sinclair
Yes.

Janaline Oh
Because why pass up the opportunity to have a personal attack? I don’t see how it really supports the case that it’s not true.

William Sinclair
Yeah.

Janaline Oh
Right, because when you start attacking the person who leaked it as a lowlife loser, you know, if it was fake, surely you would just say it’s come from nowhere, ignore it.

Anyway, aside from that, I think it is quite possible, I mean, the international inspectors, from what they’ve seen from the sort of satellite imagery, have concluded that the bombs probably did some damage, but it is not clear how much.

William Sinclair
Yeah.

Janaline Oh
And so if we just get back to how you would stop Iran from developing a nuclear weapon. There was a process in 2015 that was concluded by the Obama administration with Russia, China, the UK, France and Germany, so the other permanent five members of the UN Security Council, plus Germany, plus the European Union, whereby those countries agreed to limited sanctions relief on Iran in exchange for Iran submitting themselves to a very, very rigorous inspection and reporting regime overseen by the International Atomic Energy Agency.

That regime was working, right? Iran complied with all of its obligations under that agreement, and the UN had what it assessed as complete oversight over Iran’s nuclear activities, so it knew exactly what Iran was enriching, where, to what level, and where everything was kept.

Donald Trump withdrew from that agreement unilaterally and he imposed - he said this is a rubbish agreement. This was, I mean, you know, Netanyahu at the time complained that this was a terrible agreement and it would, you know, just encourage Iran to keep going in its nuclear programme. It actually did the opposite, right?

And I think the reason that - I mean, a cynical person might suggest that Netanyahu was opposing it because it actually removed his only argument for attacking Iran. And we know that he’s wanted to attack Iran for a long time, right?

William Sinclair
That makes sense.

Janaline Oh
So he has seen Iran as a threat for a very long time, and he did not want this process to normalise Iran. So he persuaded Trump or Trump’s advisors persuaded Trump to withdraw from this agreement that was actually working. Subsequent to that, they imposed crippling sanctions. And it wasn’t just sanctions on Iran, it was also secondary sanctions on any other country’s companies that traded with Iran. So the Europeans were not able to continue that agreement in the absence of the US.

So what did Iran do? Well, obviously it stopped cooperating with the IAEA. So from that point on, the IAEA lost sight of what Iran was enriching, where it was enriching it and where it was keeping all the stuff.

And at this point, they reckon Iran may have up to 200 kilograms of highly enriched uranium. So uranium enriched to the point where it is almost weapons ready and they don’t know where it is.

So I think you would have to argue from an effectiveness point of view that the actions of the Trump administration in his first term and then subsequently now have actually made it more likely that Iran is going to create a nuclear weapon.

And frankly, the message from this, if I were Iran, the only message I can say that you would take out of this is: the best way to secure our own security against attack is to have a nuclear weapon.

William Sinclair
Yeah, I totally agree.

Janaline Oh
So let’s go the North Korean route. Let’s just withdraw from the Nonproliferation Treaty. Let’s withdraw from the IAEA and let’s just go hell for leather to do what we can to create a nuclear weapon.

Now it’s a bad idea for people to have nuclear weapons because then you create this kind of prisoner’s dilemma issue, where, well, it would be better if nobody had nuclear weapons. But if those people have nuclear weapons, it’s better for me if I also have nuclear weapons. And then it just escalates. And that was the reason that was actually the whole rationale behind the nuclear Non-Proliferation Treaty.

So the major issue that I have, the reason that I see this as being contrary to our national interests, is because I cannot see a legitimate argument that the Israeli and US strikes on the Iranian nuclear facilities over the past couple of weeks have been in any way lawful under international law. And that is really important to Australia because Australia is one of the key countries that has been involved since the Second World War, so over the past 80 years, to champion the cause of international law.

Why do we do that? Because we have never been and we will never be big enough to be able to defend our interests in a might is right kind of world. We are not economically powerful enough. We are certainly not militarily powerful enough to do that.

So over the last 80 years, successive Australian governments, and I have to say particularly Labor governments, have worked incredibly hard to build up an international rules based order where countries agree to abide by certain rules, and the UN Charter is kind of the first example of that. There are others, there’s the WTO, the World Trade Organisation, there’s the International Development Banks, there is the whole raft of disarmament, environmental, you know, law of the sea, treaties involving the regulation of postal services.

All of these are examples of international law that Australia has helped to build, whereby countries agree to constrain their own behaviour in the interests of orderly international relations. And that is absolutely central to our ability to navigate our way in a world where we are never going to be powerful enough to just bully our way into, you know, well, bully others into accepting our interests.

William Sinclair
The United States has invaded and overthrown countries all over the world, including, ironically enough, Iran. So in terms of the sort of US-led world order, I guess my kind of question is what world order? Like where’s the order?

Janaline Oh
I think there has been an order. I think the fact that, you know, we managed to navigate the Cold War without nuclear war demonstrates that there has been some order. Now, I will say the US has, ever since that order was constructed after the Second World War, has always been a, let’s say, a very complex and difficult participant in that order.

Because the US, I think, has generally abided by international law. They have generally behaved in a way that is consistent with upholding international law. But they have also always reserved for themselves this sort of superpower exceptionalism that says, but when we think it suits us, we are just gonna go in and do this thing that we think supports our interests.

And I think the most egregious example of that was the invasion of Iraq, which, you know, had, I mean, Australia was part of that process on the US side. I really think the legal basis for that invasion was very, very tenuous, made even more tenuous to the point of evaporating when the UN weapons inspectors who went in after the fact discovered that there were no weapons of mass destruction, when that was the entire basis of the rationale for going in

William Sinclair
If you’re against Iran developing nuclear weapons, and Israel’s getting rid of those nuclear weapons, assuming that Iran getting rid of nuclear weapons is a good idea, what’s wrong with Israel going out and preventing that using all means necessary?

Janaline Oh
Lawfulness and what are the lawful means of getting rid of Iran, Iran’s nuclear weapons? Now my problems with the strikes by Israel and the US on the nuclear facilities under international law, are that the UN Charter is very explicit that countries can only act militarily against each other if either the Security Council says they can - and the Security Council clearly hasn’t in this case, and you know, given the vetoes held by China and Russia, the Security Council is never gonna authorise that kind of action.

The other situation in which countries can act militarily against each other is in self defence in an emergency. There is also, in addition to all of this, there is a contested doctrine of what is called anticipatory self defence in international law.

Now the history of this doctrine comes from a case in 1837 when the British had recently lost the American War of Independence. They were still in Canada and they were fighting an insurgency in Canada, that sort of Canadian independence movement at the time. The US was, well a US ship called the Caroline was helping the rebels. So they were taking supplies from the US side of the border and taking them into Canada to help the rebels fight the British. The British took an opportunity one night to basically blow up the ship. They attacked the ship, set fire to it and sent it over Niagara Falls. They killed one or two Americans in the process, not quite clear. And then they complained to the US that they had violated - sorry.

And then the US complained that the British had violated US sovereignty by attacking a US ship in a US harbour. The British argued that the ship had been attacking Britain by helping these Canadian rebels and that they were confident that the ship would continue to do that, and so attacking the ship when it had the opportunity in the harbour at that, you know, on that night was an act of anticipatory self defence.

Now the facts of that case were never fully resolved. Both the British and the Americans continued to disagree on, you know, whether the facts justified the action, but what they did agree on was what is now called the Caroline Test after the name of the ship, which established, and I’ll quote this, that anticipatory self defence is justifiable where there is, quote, a necessity of self defence, instant, overwhelming, leaving no choice of means and no moment for deliberation.

In other words, if you have established that someone is just about to attack you and you don’t really have any other options, yeah, you can go and attack them first.

Obviously the US and the British, you know, have never resolved the question of whether the circumstances of that, the facts of that case, justified it. But they have agreed on that principle and that has sort of come down through customary international law as a principle of anticipatory self defence.

William Sinclair
So Janaline, we’re about to wrap up this episode. Do you have any final thoughts you’d like to offer with regards to Iran or the international community or everything that’s going on in the conflict?

Janaline Oh
Yeah, so I think one of the other really sad things about this, and I think it was probably not accidental, is that the Israeli strikes on Iran have just massively distracted global attention to what is going on in Gaza, which continues to be heartbreaking, catastrophic for the population of Gaza, and, you know, again, talking about international law, I really think that there is now fairly substantial evidence that Israel is not abiding by its international legal obligations, to say the least.

Having said that, we could probably do a whole episode and we probably should do a whole episode on Israel and Palestine.

William Sinclair
Thank you so much to Callum Sinclair and Euca Lord for helping edit The music is called Insurrection, written by Pierre Chrétien, performed by the Souljazz Orchestra, courtesy of Do Right Music, Inc.

I’m William Sinclair.

Janaline Oh
I’m Janaline Oh, and this is Why Can’t They Just.