Guest-Post: Nuclear Trafficking as an International Crime?

by Kevin Jon Heller

The following is a guest-post written by Orde Kittrie, a professor at ASU’s law school, and Sandy Spector, the deputy director of the James Martin Center for Nonproliferation Studies.  They very much want input from OJ’s readership, so please post your thoughts.  Our thanks to Orde and Sandy for contributing the post!

Seven years after A.Q. Khan publicly confessed to his illegal nuclear dealings, and 35 years after he fled the Netherlands with a cache of stolen nuclear blueprints, the father of Pakistan’s nuclear weapons program (and Iran’s) has yet to pay a significant price for his transgressions.

How might the next A.Q. Khan be more successfully prosecuted or deterred? Does it make sense to try to turn trafficking in nuclear materials (e.g., enriched uranium) and nuclear commodities (e.g., nuclear equipment and technology) into an international crime? If so, how? This will be a major topic of discussion at an April 4-5 conference in Washington, DC sponsored by the Nautilus Institute for Security and Sustainability and the Carnegie Endowment of International Peace (see here for more information about the conference). We thought it might be interesting to pose these questions for brainstorming by the collective expertise of Opinio Juris readers.

In the rest of this post, we will briefly 1) describe what has been suggested would be the ideal (but possibly unattainable) new legal instrument for combating nuclear smuggling; 2) describe the major current relevant legal instruments and their flaws; and 3) identify several potential options, short of the ideal, for making nuclear trafficking an international crime. We welcome your comments on all aspects of this analysis, including which one or more of the potential options might make the most sense to pursue. We also welcome any other ideas you might have for maximizing the international community’s chances to prosecute and/or deter the next A.Q. Khan.

What Is The Ideal New Legal Instrument for Combatting Nuclear Smuggling?

It has been suggested that the ideal would be a new treaty, adhered to by all relevant states, that would: make nuclear material and nuclear commodity trafficking an offense under its terms; require all parties to enact laws making nuclear trafficking a high-penalty criminal offense domestically; give parties broad jurisdiction to bring traffickers to justice, by providing jurisdiction over persons on their territory, over their nationals who committed offenses abroad, and over any individual who injured a national of the state party; and include strong mutual legal assistance provisions, requiring all parties to extradite or prosecute and to support prosecutions in the courts of other parties.

What Are The Major Current Relevant Legal Instruments And Their Flaws?

The International Convention for the Suppression of Acts of Nuclear Terrorism (entry into force 2007) contains many of the elements of the “ideal new treaty” discussed above. But it makes only trafficking in nuclear materials an offense, not trafficking in commodities of the type provided to North Korea, Iran, and Libya by the A.Q. Khan network or the commodities being illicitly acquired today by Iran, Pakistan, and North Korea. Moreover, it has only 76 parties.

The Convention on the Physical Protection of Nuclear Material(entry into force 1987) has 145 parties, but is also limited to nuclear material trafficking, and indeed, covers only nuclear material in peaceful uses, not that in military programs.

UN Security Council Resolution (UNSCR) 1540 requires all states to control nuclear materials and commodities (termed “related materials”) and to adopt and enforce civil and criminal penalties against the export, trans-shipment, and financing of transfers that would contribute to proliferation. But the resolution does not itself criminalize such activities, nor does it establish the robust jurisdictional and mutual assistance rules of the nuclear material treaties.

Security Council resolutions imposing sanctions on North Korea and Iran establish quasi-criminal penalties (asset freezes and travel bans) on any individual whom the Security Council, or the committees established by the Security Council to oversee implementation of the North Korea and Iran sanctions, “designates” as being engaged in, directly associated with or providing support for North Korea or Iran’s proliferation sensitive nuclear activities, including persons or entities acting on their behalf or at their direction. This formulation does cover both those involved in nuclear material trafficking and illicit procurement of nuclear commodities, as well as those directing such efforts. To date, however, virtually all those subjected to these sanctions have been North Korean and Iranian individuals (usually officials); very few individuals situated elsewhere who are involved in procurement efforts on behalf of these governments have been targeted. Moreover, the resolutions cover only North Korean and Iranian nuclear trafficking, not that by others.

The Guidelines of the 46-member Nuclear Suppliers Group (NSG) also fall short. The NSG is a voluntary international arrangement, whose members by consensus develop certain export licensing principles and lists of nuclear materials and commodities whose transfer is to be controlled. All members then adopt and implement these guidelines voluntarily. The guidelines do not establish trafficking as an offense, per se, stating only, “Suppliers should have in place legal measures to ensure the effective implementation of the Guidelines, including export licensing regulations, enforcement measures, and penalties for violations.” Nor do the Guidelines provide for any form of mutual legal assistance to enforce the parallel export control rules that all members are implementing.

What Are Some Options For Making Nuclear Trafficking an International Crime?

Ad Hoc Coalitions or Existing Groupings — It may be possible to reinforce the network of mutual legal assistance and extradition treaties for an ad hoc coalition or an existing grouping such as U.S. security partners or the NSG. For example, if a group included only parties to the Convention for the Suppression of Acts of Nuclear Terrorism, all members of the group could jointly agree to apply the robust mutual legal assistance and jurisdictional rules in that convention not only to nuclear material trafficking as the convention provides, but also to nuclear commodity trafficking.

Security Council — In addition, the Security Council could reinforce the international criminal law aspects of UNSCR 1540 by, in a new resolution, encouraging or requiring states to incorporate robust jurisdictional and mutual assistance rules in their laws criminalizing all types of nuclear smuggling. Or, the UNSCR 1540 Committee could perhaps issue an interpretation of the resolution to encourage this.

Rome Statute — Some have suggested amending the Rome Statute to extend the jurisdiction of the International Criminal Court to cover the most egregious acts of nuclear trafficking, such as providing a nuclear weapon or the ability to manufacture one to a non-state group or transferring particularly sensitive nuclear technology, such as a nuclear weapon design, to a non-nuclear-weapon state party to the Nuclear Nonproliferation Treaty.

Customary International Law — A final possibility would be to accelerate the evolution toward customary international law in this area. All of the international instruments noted above are moving toward greater participation. Both the Convention for the Suppression of Acts of Nuclear Terrorism and the Convention on the Physical Protection of Nuclear Material are gaining additional adherents and states’ implementation of UNSCR 1540 is steadily improving. As this web grows stronger, perhaps certain components will evolve to the point of becoming so generally applied, out of a sense of legal obligation, as to reach the level of customary international law, which would make them binding on all states.

Which of these routes towards making nuclear trafficking an international crime do you think it would make the most sense to pursue? Are there other feasible routes?

Thanks,

Professor Orde F. Kittrie, Sandra Day O’Connor College of Law, Arizona State University

Leonard “Sandy” Spector, Esq., Deputy Director, James Martin Center for Nonproliferation Studies

http://opiniojuris.org/2011/04/04/guest-post-nuclear-trafficking-as-an-international-crime/

One Response

  1. It’s an interesting idea. A few thoughts.

    1) It’s not entirely clear from the post what you mean exactly by “international crime”. Do you mean a crime that is part of international criminal law, as genocide, war crimes and crimes against humanity? or do you mean a crime that is factually trans-boundary, such as various organized crimes, like drug-smuggling and money laundering? Although some commentators see an overlap between the two, when for example, they suggest that drug related crimes be included in the ICC Statute, I would argue that there is a considerable conceptual difference. Indeed, the first category invites a discussion more on international prosecution of the acts under consideration, whereas the second category leads more to questions of international cooperation.

    2) In relation to the first meaning, the question is whether this should be a discrete crime under ICL, or a contributory act to one of the already existing core international crimes. This would have different consequences in terms of the constitutive elements of the crime. For example, you it would need to just show mens rea of detention, or also the mens rea for the criminal use of the nuclear material. I can see why, as a legal policy, one would want to argue that nuclear material is so dangerous a product that you criminalize its simple possession, but, if implemented, this could open a pandora’s box of questions in relation to other such activities. Indeed, couldn’t you then argue that weapons are intrinsically dangerous, and that arms dealing should be a crime irrespective of the potential use of the weapons? I know my example is extreme, but it just illustrates the consequences of considering the possession of something to be criminal, irrespective of its actual use.

    I look forward to seeing the actual conclusions of your paper!

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