Working Paper No. 7 – November 2007

SANCTIONING ILLICIT TRAFFICKING IN NUCLEAR MATERIALS AND OTHER RADIOACTIVE SUBSTANCES THROUGH

INDIVIDUAL CRIMINAL RESPONSIBILITY: FALLING BETWEEN THE CRACKS OF INTERNATIONAL CRIMINAL LAW?

B. Demeyere

SANCTIONING ILLICIT TRAFFICKING IN NUCLEAR MATERIALS AND OTHER RADIOACTIVE SUBSTANCES THROUGH

INDIVIDUAL CRIMINAL RESPONSIBILITY : FALLING BETWEEN THE CRACKS OF INTERNATIONAL CRIMINAL LAW?

Bruno Demeyere

ABSTRACT International criminal law does not recognise illicit trafficking in nuclear materials and other radioactive substances as a separate crime. There are, however, quite a number of treaties that could possibly be resorted to by a domestic prosecutor who seeks to impose criminal sanctions upon the individuals involved in such trafficking. Most of these treaties only consider the acts worthy of criminal sanctions if there is a link with nuclear terrorism. This absence of an explicit incrimination stands in sharp contrast to the rhetoric used by the UN Security Council, which has used the high-flying words ‘threat to international peace and security’ to designate the threat. This paper examines how the law views the nuclear black market, and which mechanisms have been set up in order to prevent that radioactive substances enter into this market. An analysis is made as to whether the International Criminal Court could have any role to play in the reactive fight against this threat, and overviews the challenges that exist for a domestic prosecutor when confronted with the current legislative framework. Provided that the definition becomes refined, and be brought in line with the prevailing paradigms of international criminal law, it is argued that illicit nuclear trafficking poses such a threat to the international community as a whole, that it merits consideration to designate it as a new, and separate, international crime. KEY WORDS International Nuclear Law ; International Criminal Law ; Nuclear Security ; Nuclear Non-Proliferation ; Nuclear Terrorism ; Weapons of Mass Destruction ; United Nations Security Council Resolution 1540 ; International Criminal Court ; Role of Domestic Courts in the Prosecution of International Crimes ; Transnational Organized Crime ; Illicit Markets ; Accomplice Liability ; Representative Labelling AUTHOR Bruno Demeyere (LL.M, Harvard Law School) is a Research Fellow at the Leuven Centre for Global Governance Studies and a Ph.D-Candidate at the Institute for International Law from Katholieke Universiteit Leuven. ADDRESS FOR CORRESPONDENCE Bruno Demeyere Faculty of Law International Law Tiensestraat 41 BE-3000 Leuven Bruno.Demeyere@law.kuleuven.be © 2007 by [Author(s)]. All rights reserved. No portion of this paper may be reproduced without permission of the authors. Working papers are research materials circulated by their authors for purposes of information and critical discussion. They have not necessarily undergone formal peer review.

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CONTENTS I. A STROLL THROUGH THE NUCLEAR BLACK MARKET...............................................................1

I.a Lack of a Clear Understanding and Definition.................................................................2 I.b The View of Diplomats : .................................................................................................6 Illicit Trafficking is a Threat to International Peace and Security ..........................................6

II. THE PLACE OF CRIMINAL SANCTIONS AMIDST A MUCH BROADER LANDSCAPE SEEKING TO ADDRESS THE TRANSNATIONAL THREAT OF ILLICIT NUCLEAR TRAFFICKING ...............................10

II.a Prevention comes first : States as exclusive adressees of obligations ? .....................11 II.b. Prevention versus Criminalization in Dealing with Illicit Trafficking of Weapons of Mass Destruction : Respective Advantages and Disadvantages.................................................16

III. ILLICIT NUCLEAR TRAFFICKING MEETS INTERNATIONAL CRIMINAL LAW : A POLICY TERM IS OF NO USE IN A CRIMINAL COURT !................................................................................................21

III.a Some Examples of A Definition In Policy Documents .................................................22 III.b Challenges for a Prosecutor When Confronting Existing Treaties of International Criminal Law .....................26

IV. CAN ILLICIT NUCLEAR TRAFFICKING BE PROSECUTED AS ONE OF THE CORE CRIMES OVER WHICH THE INTERNATIONAL CRIMINAL COURT HAS JURISDICTION ?...........................................29

IV.a One word, two different meanings : on international crimes .......................................29 IV.b « Theft of Nuclear Material » as a special category : multi-faceted values and an elevated ranking among international crimes ?..................................................................31 IV.c The International Criminal Court and its jurisdiction over some ‘sensu strictu’ international crimes ............................................................................................................34

General Features and Jurisdictional Limits ....................................................................34 The ICC and the Nuclear Field ? ....................................................................................37

V. THE UN SECURITY COUNCIL MOBILISES CRIMINAL LAW AGAINST..........................................41 SOME ASPECTS OF ILLICIT NUCLEAR TRAFFICKING....................................................................41

V.a. Sanction regimes ........................................................................................................41 V.b. Resolution 1540 : A new top for the international criminal law pyramid that does not fit its previously constructed shape ....................................................................................44

VI. TREATY CRIMES AND THE ELUSIVE CRIMINAL LAW DIMENSION OF ILLICIT NUCLEAR TRAFFICKING ...........................................................................................................................48

VI.a. Systemic Features .....................................................................................................49 VI.b Which substances are covered ?...............................................................................52 VI.c Which acts are covered and in which context has that been done? ...........................55

1. The Convention on the Physical Protection of Nuclear Material ................................55 2. The International Convention for the Suppression of Terrorist Bombings ..................58 3. The Convention against Transnational Organized Crime...........................................59 4. The International Convention for the Suppression of Acts of Nuclear Terrorism .......63

VI.d Modes of Participation : Tackling the Illicit Traffickers through ..................................64 ‘Joint Criminal Enterprise’ Liability ?...................................................................................64

CONCLUSION : WHAT’S IN A NAME ? ILLICIT NUCLEAR TRAFFICKING IS EVERYWHERE...BUT INTERNATIONAL CRIMINAL LAW NEEDS TO LABEL IT AS SUCH ! .................................................71 EXTENDED ABSTRACT ..............................................................................................................75

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I. A STROLL THROUGH THE NUCLEAR BLACK MARKET1

Illicit trafficking in nuclear material and other radioactive substances, at least in terms

of a perceived fear of it, has existed prior to the early 1990s.2 However, it has

particularly been since the end of the Cold War that, once in a while, the broad public

learns about law enforcement agencies’ discoveries of a particular instance of illicit

nuclear trafficking.3 Usually, there is no need at all to draw a picture or to provide

further information in order to render this news comprehensible: if such substances

fall into the hands of criminals or terrorists that are willing to wreak catastrophic

havoc by using them, the consequences could be simply devastating, e.g. when

actual nuclear weapons would be used, or at the very least dramatic, e.g. in case a

dirty bomb is used in an attack.

To the fears instilled by the early ‘90s, when nuclear sources having originated from

within the former Soviet Union emerged in the West,4 the 21st century has indeed

added the fear that there are quite a number of potential new markets of willing

buyers that would be seeking to gain access to these substances : non-State actors

such as terrorists,5 as well as radical politically or ideologically motivated actors on

the one hand and those States6 that matter most in the nuclear security frameworks,

1 This paper represents work in progress. An earlier version of it has been presented during the Nuclear Inter Jura Congress (Brussels, October 2007), organised by the International Nuclear Law Association, during Session V on ‘Nuclear Security’. The final draft will be published, as part of the proceedings of this Congress, by the publishing house Emile Bruylant in Brussels. 2 For early examples of an analysis of the threat, see Mason Wilrich and Theodore Taylor, NUCLEAR THEFT : RISKS AND SAFEGUARDS (Cambridge, Ballinger Publishing Co. 1974) and Brian M. Jenkins, Will Terrorists Go Nuclear ?, The Rand Paper Series, 5541, Santa Monica (Calif.), 1975. 3 Whenever referred to in a sense that is not strictly legal or that is, more specifically, not specially coined in a criminal law language, this paper uses ‘illicit trafficking in nuclear material and other radioactive substances’ and ‘illicit nuclear trafficking’ interchangeably. The various sections of the paper will subsequently deal with the legal ramifications of these terms, and with the contours under which these concepts bear any relevance from the point of view of holding individuals liable via mechanisms through which criminal sanctions can be imposed. 4 See , for an overview of the incidents throughout the ‘90s, Bruce Hoffman and David Claridge, Illicit Trafficking in Nuclear Materials, Conflict Studies 314/315, January / February 1999. See generally Lee W. Rensselaer, SMUGGLING ARMAGEDDON : THE NUCLEAR BLACK MARKET IN THE FORMER SOVIET UNION AND EUROPE, New York, St. Martin’s Griffin, 1999 ; and Alisson T. Graham et al., AVOIDING NUCLEAR ANARCHY : CONTAINING THE THREAT OF LOOSE RUSSIAN NUCLEAR WEAPONS AND FISSILE MATERIAL, Cambridge MA, MIT Press, 1999. 5 E.g. Robert Chesney, National Insecurity : Nuclear Material Availability and the Threat of Nuclear Terrorism, 20 Loy. L.A. Int’l & Comp. L.J. 29 (1997). 6 About the early ‘90s, in which quite some attention was devoted by large powers such as the USA to the issue of whether and which rogue States would be seeking to gain access to weapons of mass destruction, and how this influenced foreign policy and strategic thinking, see Michael Klare, ROGUE STATES AND NUCLEAR OUTLAWS : AMERICA’s SEARCH FOR A NEW FOREIGN POLICY, Hill and Wang, New Yor, 1995

i.e. those that remain outside of the conventional non-proliferation system, on the

other hand.

The discovery in 2004 of A.Q. Khan’s criminal network heightened these fears and

proved there was indeed cause for concern. The threat had diversified both in terms

of potential buyers, which include both States and non-State actors, and in terms of

the quantity of willing sellers. From a relatively marginal phenomenon in the 1980s7,

its scale had shifted in about fifteen years to such an extent that it has now become

mainstream for observers to believe that there exists indeed something like a nuclear

black market that would be available for those seeking to obtain its goods and

technologies for illegal purposes.8

I.a Lack of a Clear Understanding and Definition There are quite some uncertainties which surround the concept of « nuclear black

market », both in terms of what it actually and factually is all about, and which

concepts or definitions could be used to refer to it. Three of such uncertainties will be

touched upon in the following paragraphs.

First : while the term ‘nuclear black market’ pops up time and again, it remains ill-

defined up until today in terms of the actual substances that are ‘offered’ on this

market : only radioactive sources with a relatively low degree of radioactivity, or also

substances that would allow to fabricate an actual nuclear weapon ? From an

empirical perspective, it remains impossible to conclusively say which materials are

precisely available via this illegal circuit. In additon to the nuclear materials and

radiological substances themselves, the term ‘nuclear black market’ is often equally

used as a catch-all term which encompasses both the illegal trade in nuclear

equipment, technology and components, on the one hand, and the brain-drain of

7 E.g., speaking about the first half of the 1980s, Leonard S. Spector, The Nuclear Netherworld, 26 Colum. J. Transnat’l L. 9 (1987-1988), at 9 : « The nuclear netherworld embraces a broad range of activities (...). Fortunately, these activities falls short of constituting a black market, as such, like those offering illicit drugs or conventional arms. Virtually all the activities in the nuclear underground are pursued at the behest of a small number of national governments rather than criminal, dissident, or terrorist groups. There appear to be few, if any, independent, free-standing smuggling networks ». 8 Christopher Clary, Dr. Khan’s Nuclear WalMart, 76 Disarmament Diplomacy, March/April 2004, via http://www.acronym.org.uk/dd/dd76/76cc.htm ; The International Institute for Strategic Studies, Nuclear Black Markets : Pakistan, A.Q. Khan and the Rise of Proliferation Networks, IIS Strategic Dossier, May 2007. See also William J. Broad & David E. Sanger, Pakistani’s Nuclear Black Market Seen as Offering Deepest Secrets of Building Bomb, N.Y. Times, Mar. 21, 2005, at A7. For one of the most recent books on the issue in general, see Graham T. Allison, NUCLEAR TERRORISM : THE ULTIMATE PREVENTABLE CATASTROPHE, Times Books, 2004.

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certain nuclear experts seeking to offer their skills to those who pay, State or non-

State actor and no matter how dubious their purpose, on the other hand.

As its title indicates, the present paper is only concerned with illicit trafficking in

nuclear materials and other radioactive substances, hence excluding the much-

larger and, measured by the number of incidents that are reported, much more

frequent9, issue of illegal trade in the technological infrastructure necessary to

autonomously produce nuclear or radioactive material : this paper’s focus rests on

illicit trafficking in nuclear or radioactive substances that have been acquired without

authorization, and which subsequently start going their way.

Despite the uncertainty about both the nature of its participants and the specific

materials that are being illicitly trafficking on the nuclear black market, there has

been a consistent attempt by the International Atomic Energy’s Illicit Trafficking

Database to catalogue all incidents, of which only the most spectacular will obviously

make it into the media. In total, since its having become operational in 1995, this

Database has compiled about 1000 confirmed10 incidents and about 800

unconfirmed incidents, all of which involved illicit trafficking of nuclear materials and

other radioactive substances. No one knows, of course, to what extent there lies an

iceberg underneath what has been reported to the Database and to what extent

there is more than what meets the eye. In short, the task remains to clearly map out

the nature of the threat posed by illicit trafficking.11

It remains, furthermore, notoriously hard for analysists to assess to what extent the

nuclear12 black market would either be composed of amateurs, driven by a sense

that there is an opportunity to earn huge profits with illicit trafficking but that are

without any coordination amongst each other, or whether we are dealing with

9 The International Institute for Strategic Studies, Nuclear Black Markets : Pakistan, A.Q. Khan and the Rise of Proliferation Networks, IIS Strategic Dossier, May 2007, Press Statement, at 4 : « The available data on nuclear-material smuggling are less alarming than the comparable known incidents in the illicit trade in nuclear technology. » 10 Cfr. P.M. Grant, K.J. Moody, I.D. Hutcheon et al., Nuclear Forensics in Law Enforcement Applications, Journal of Radioanalytical and Nuclear Chemistry, 129 – 132, Vol. 235, Nos. 1- 2, 1998. 11 Cfr. Samantha Brady Carter, Comment : Defining Nuclear Threats and Vulnerabilities After September 11, 2001 : A Legal Planning Analysis to Establish National and International Solutions and Standards, 9 Widener L. Symp. J. 549. 12 In the field of conventional weapons, and the conventional arms industry, for an example of research done in the 1970s, trying to give a feeling of the type of characters that are involved in this industry, see e.g. Anthony Sampson, THE ARMS BAZAAR : THE COMPANIES, THE DEALERS, THE BRIBES : FROM VICKERS TO LOCKHEED, Hodder and Stoughton, 1977.

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transnational organized criminal networks.13 If the latter be the case, is the popular

perception correct that these are mainly Russian networks ?14

One particularly thorny issue relates to the problem generated by unemployed

former nuclear scientists that are willing to offer their expertise to whoever pays for it.

While there are some ad hoc approaches in domestic legislation, and despite quite

some calls for doing so by legal authors15, international (criminal) law has not

explicitly dealt with the question as to whether the fact of disposing of scientific

expertise of a particular nature, such as nuclear professionals do, should be

safeguarded by separate criminal sanctions in case of gross violations of

professional ethics. Obviously, anything that will be dealt with below equally applies

to those individuals. At this stage, however, the point is that the phenomenon has not

been separately tackled by international law.

In order to bring some clarity to the uncertainty about the question which are the

market’s participants on both the supply and the demand side of the chain, there is

quite some conceptual appeal to the approach that seeks to oppose the ‘black’

market to the ‘grey’ market : while the former’s supply side operates without any

13 Bruce Hoffman and David Claridge, Illicit Trafficking in Nuclear Materials, Conflict Studies 314/315, January / February 1999, at 25 : « (...) organised crime’s role in the illicit nuclear traffic is in fact very difficult to discern ». See also Oded Löwenheim, Transnational criminal organizations and security : the case against inflating the threat, 57 Int’l L.J 513, 531 (2001-2002) : « almost all known cases of nuclear smuggling have been perpetrated by amateur smugglers and criminals (often employees in a civil nuclear site motivated by dire economic circumstances (... ) ». 14 Wendy L. Mirsky, The Link between Russian Organized Crime and Nuclear-Weapons Proliferation : Fighting Crime and Ensuring International Security, 16 U. Pa. J. Int'l Bus. L. 749 (1995) 15 For an overview of the problem, and a proposal to address it through the introduction of a new international crime of ‘mercenary of weapons of mass destruction’ see Richard L. Williamson, Jr., Law and the H-Bomb : Strengthening the NonProliferation Regime to Impede Advanced Proliferation, 28 Cornell Int’l L.J. 71, 140-145 (1995). Similarly, see Adam Treiger, Plugging the Russian Brain Drain : Criminalizing Nuclear-Expertise Proliferation, 82 Geo. L.J. 237 (1993). See also Jeffrey B. Fugal, A Brief Survey of the Smuggling of Nuclear Material : An Embryonic Phenomena with a Terrifying Future in the European Community, 6 Ind. Int’l & Comp. L. Rev. 289, 298-301 (1995 – 1996), also at 315-316 about the domestic legislation in certain countries making it a crime for nuclear mercenaries to contribut to another country nuclear weapons program, as well as Non-State Actors in the Nuclear Black Market : Proposing an International Legal Framework for Preventing Nuclear Expertise Proliferation & Nuclear Smuggling by Non-State Actors, II.A Proliferation of Nuclear Expertise, 2 Santa Clara J. Int’l L 84 (2004). See generally, about liability outside of the illicit trafficking context, Ionel Olteanu and Elena Banciu, Problèmes de Responsabilité Pénale des Professionels du Domaine Nucléaire, presented during the International Nuclear Jura Congress from the International Nuclear Law Association, October 2007, and the text of which is to appear in the same volume as the final version of this draft. More generally, on the issue of whether there is a legal framework regulating scientific research and the possibly criminal applications to which its results may be put, see M. Gregg Bloche, Rogue Science, 91 Geo. L.J. 1257 (2003).

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governmental knowledge or control, the latter is composed of transfers that occur by

or with the consent of governments.16

Finally : uncertainty prevails about the extent to which illicit nuclear trafficking is

considered more or less risky by organised criminal groups when compared to other

criminal activities these groups typically resort to, such as drug smuggling and

human trafficking. This question is important from a policy perspective : is it to be

expected that such criminal networks will remain interested in illicit nuclear

trafficking, or are there good reasons to believe that such trafficking is considered

too risky by most such criminal groups?17 If the latter is not the case, this would

mean that the phenomenon takes on truely worrying proportions. Even if one gets a

good understanding of the characteristing features underlying the instances of illicit

nuclear trafficking that end up being discovered, it seems particularly ill-guided to

extrapolate the limited amount of information which currently exists about this, to the

entire phenomenon and to everything that remains undetected.18

In short, it is not all that easy to get a good sense of this illegal and secretive

underworld. Running throughout the debates about illicit nuclear trafficking, of

course, is the fear that these substances will be used for terrorist purposes and that

terrorism is what it is all about. Illicit nuclear trafficking, on the one hand, and the

perpetration of terrorist acts on the other hand, however, are not necessarily done by

one and the same person. If the person involved in the illicit trafficking is indeed not

the one actually perpetrating the terrorist acts, is it nevertheless possible from the

legal point of view to consider them as terrorists and to hold them liable as such ?

These issues at the micro-level of potential criminal liability that could be imposed

upon the individuals involved, will be extensively dealt with below. For its part, the

next section will look at the macro-level : within the realm of the United Nations

16 Nicolas Marsh, Two Sides of the Same Coin ? The Legal and Illegal Trade in Small Arms, 9 Brown J. World Aff. 217, 221 (2002-2003), also at 223 : « The black market constitutes transfers of illicit arms that are conducted by private individuals, criminal organizations, or non-State actors such as rebel groups. Often, all three groups will be involved at once ». 17 International Institute for Strategic Studies, Strategic Survey 1994/95, at 26 : « Russian organised crime groups are involved on an opportunist basis, but nuclear trafficking is not one of their core activities. Other areas seem to offer higher pay-offs at lower risk. » See also Oded Löwenheim, Transnational criminal organizations and security : the case against inflating the threat, 57 Int’l L.J 513, 531-532 (2001-2002) : « Several factors might dissuade transnational criminal organizations from the nuclear black market. (...) the number of potential clients for nuclear materials is limited (...) and therefore the rentability of nuclear smuggling might be rather low (...) ». 18 Barry Kellman and David S. Gualtieri, Barricading the Nuclear Window : A Legal Regima to Curtail Nuclear Smuggling, 1996 U. Ill. L. Rev. 667, 677 (1996).

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corridors and the texts its multilateral bodies produce, how is illicit nuclear trafficking

described ?

I.b The View of Diplomats : Illicit Trafficking is a Threat to International Peace and Security The UN-bodies invoke their concern about illicit nuclear trafficking in texts of the

highest normative value, such as Security Council Resolutions adopted under

Chapter VII of the UN-Charter. In these texts, every single time, the fear is invoked in

very close proximity with terrorist attacks : throughout, the texts transpire a sense

that the reason for speaking in such terms about the phenomenon, is because of the

potential destination that it could lead to, being a terrorist attack.

The texts and resolutions that will be overviewed below, however, do not exclusively

deal with nuclear substances. For the international community, trafficking in

substances that could be used for committing a devastating terrorist attack, is being

amalgated under the heading of ‘weapons of mass destruction’ : none of the

generated by the Security Council or the General Assembly, exclusively deal with

nuclear substances. Every single time, concern is expressed over illicit trafficking in

nuclear, biological and chemical weapons. This raises questions about the specificity

of the nuclear field : while there is a clearly separate international law on nuclear

safety, it may merit some thought to consider to what extent an entirely separate law

of nuclear security corresponds to the concerns of the international community, or

whether the approach to these three type of weapons could be integrated. At least in

terms of the broadest policy documents, such integration has already occurred. The

latter has been triggered by the overall fear which is underlying the entire debate :

terrorism.

For both the Security Council and, though in somewhat less explicit terms, the

General Assembly19, there seems indeed to be no doubt about the fact that illicit

(nuclear) trafficking is considered as being clearly and intrinsically linked to terrorism.

19 In a remarkable step, the UN General Assembly adopted in 2006, a Resolution (The United Nations Global Counter-Terrorism Strategy, G.A. Res. 60/288, U.N. Doc. A/RES/60/288 (20 September 2006)), with an annexed Plan of Action, embodying a Global Counter-Terrorism Strategy. As part of the « Measures to Prevent and Combat Terrorism », States declared their resolve, in the Plan of Action, « in particular by denying terrorists access to the means to carry out their attacks » (underlining added), « to strengthen coordination and cooperation among States in combating crimes that might be connected with terrorism, including (...) smuggling of nuclear, chemical, biological, radiological and other potentially deadly materials ».

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In its well-known Resolution 1373 (2001), adopted after the 9/11 terrorist attacks20,

the Security Council, apart from its controversial decision to impose a number of far-

reaching obligations upon Member States21, « note(d) with concern the close

connection between international terrorism and (...) illegal movement of nuclear,

chemical, biological and other potentially deadly materials ».22 Other than that,

however, Resolution 1373, which was mostly concerned with the financing of

terrorism23, did not contain any operative action which directly touched upon the field

of weapons of mass destruction.

In its equally far-reaching Resolution 1540 (2004), exclusively dealing with the nexus

between weapons and mass destruction and non-State actors, the Security Council

indicated that it was « gravely concerned by the threat of terrorism and the risk that

non-State actors (...) may acquire, develop, traffic in or use nuclear (...) weapons and

their means of delivery ».24

Thus, within the political realm of the Security Council and considered from a macro-

perspective in these thematic resolutions, terrorism and illicit trafficking are

considered to be linked.

What is more, as will be elaborated upon below, is that the Security Council, which

had already indicated in the past that « the proliferation of all weapons of mass

destruction constitutes a threat to international peace and security »25, has explicitly

and more specifically labelled in 2004 « the threat of illicit trafficking in nuclear (...)

weapons and their means of delivery and related materials » as a « threat of

20 See generally Eric Rosand, Security Council Resolution 1373, The Counter-Terrorism Committee, and the Fight against Terrorism, 97 Am. J. Int'l L. 333 (2003) and Andrea Bianchi, Security Council’s Anti-Terror Resolutions and their Implementation by Member States, 4 J. Int’l Crim. Just. 1044 (2006). 21 For a discussion about this legislative activism, the political debate it has provoked and whether or not these Resolutions are in fact within the boundaries of the Security Council’s competences, see Stefan Talmon, The Security Council as World Legislature, 99 Am. J. Int’l L. 175 (2005) and Eric Rosand, The Security Council as ‘Global Legislator’ : Ultra vires or ultra innovative ?, 28 Fordham J. Int’l L. 542 (2005). 22 S.C. Res. 1373, §4, U.N. Doc. S/RES/1373 (September 28, 2001), which also mentioned « the close connection between international terrorism and transnational organized crime, illicit drugs, money laundering, illegal arms trafficking ». Underlining in the text above added. 23 This article will not focus upon the issue of the financing of international crime and the way the international community attempts to address this threat. See generally Herbert V. Morais, Fighting International Crime and Its Financing : The Importance of Following A Coherent Global Strategy Based on the Rule of Law, 50 Vill. L. Rev. 583 (2005). See also, more in particular concerning the financing of terrorist activities, Joseph M. Myers, The Silent Struggle Against Terrorist Financing, 6 Geo. J. Int’l Aff. 33 (2005). 24 S.C. Res. 1540, Preamble, §9, U.N. Doc. S/RES/1540 (April 28, 2004). 25 U.N. Doc. S/23500 (January 31, 1992), Statement of the President at the Council’s meeting at the level of heads of State and Government, reaffirmed in Resolution 1540, Preamble, §2. The 1992 Statement has been made in the specific context of Iraq.

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international peace and security », irrespective of any particular region of country.26

Thus, within the paradigm of its approach to deal with the three types of weapons of

mass destruction at the same time, illicit trafficking has nevertheless been separately

touched upon, and been extracted from the larger debate on non-proliferation.

The fact of labelling illicit trafficking as a « threat to international peace and security »

contains a dimension the significance of which cannot be overstated : as is well

known, such labelling prepares the way for the Security Council to use its formidable

powers under the Charter for restoring international peace and security. In and of

itself, it remains remarkable that the Security Council has labelled a particular

phenomenon in these terms, without having before it a specific situation in a given

country or region.27 This step indicates the political importance and priority that is

accorded to the issue.

Whereas these Resolutions will be further discussed in-depth below as far as they

are relevant from the point of view of international criminal law (see V. The Security

Council Mobilises Criminal Law against Some Aspects of Illicit Trafficking), the

central point of the current section lies in the opportunity to stress the disconnect between the UN-bodies’ language on the one hand, versus the treatment currently

reserved for illicit nuclear trafficking by international criminal law, on the other hand.

While the Security Council uses an instrument of the highest normative power, and

speaks about illicit (nuclear) trafficking in the most significant terms, illicit nuclear

trafficking is not even separately, let alone comprehensively criminalized by the

patchwork of treaties that will be analyzed below. Thus, the discourse used within

the political theatres of great power politics, do not necessarily translate into an

approach which seeks to render it robust by allowing for criminal sanctions against

those which inhabit the phenomenon. In short : the ‘international peace and security’

point of view, has no automatic overlap with the point of view of individual criminal

liability.

It is one thing for the Security Council to indicate that it believes there to be a link

between terrorism and illicit nuclear trafficking, it is quite another thing for States to

see it exist in actual practice : the reactions from about forty States to a

questionnaire by the United Nations Office on Drugs and Crime indicate that, at least

26 UN SC, S/Res/1540 (2004), 28 April 2004, Preamble, 9th para, in 43 Int’l Legal Materials 1237 (2004), which mentioned ‘chemical or biological weapons’ on the same status as nuclear weapons. 27 Daniel Pickard, When Does Crime Become a Threat to International Peace and Security ?, 12 Fla. J. Int’l L. 1, 14-19 (1998-2000).

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in their experience, there is a trend that such link between international terrorism and

illicit nuclear trafficking is not perceived as such in practice.28 The amount of material

on which this is based, remains too anecdotical and cannot be considered

conclusive. But it does show that reality may be conceptually more refined than the

Security Council’s statements.

If it is indeed correct, as the trend indicates, that those involved in terrorist activities

are not necessarily the same individuals as those involved in illicit trafficking, it will

need to be assessed to what extent international criminal law catches both

categories of individuals, being the terrorists versus those involved in illicit nuclear

trafficking, as part of an organized criminal group or not.

At the end of the day however, irrespective of all these uncertainties about the size

and shape of the phenomenon, lies the fear that a nuclear or radioactive bomb

manages to be fabricated and will be used for terrorist or other criminal purposes.

Among the possible strategies that could be resorted to by criminals amidst the

nexus between terrorism and illicit trafficking29, this article only focuses on one such

threat : nuclear or radioactive materials come in the hands of unauthorized

individuals with less than scrupulous purposes. These individuals subsequently start

moving, transporting, trading etc. with the said substance, and this across a possibly

very long chain of individuals that are involved. At the end of this chain lies the

daunting prospect of an attack that use an autofabricated or stolen dirty bomb or

nuclear bomb.

Irrespective of the discourse used by the multilateral bodies, while excluding the

question of the extent to which acts of illicit nuclear trafficking could be sanctioned

through criminal means, the next part seeks to map out which mechanisms and

initiatives have been deployed by States in order to address the threat posed by illicit

nuclear trafficking.

28 Yvon Dandurand and Vivienne Chin, Links between Terrorism and Other Forms of Crime : A Report Submitted to Foreign Affairs Canada and the United Nations Office on Drugs and Crime, 21- 23. 29 Cfr. William C. Potter, Charles D. Ferguson and Leonard S. Spector, The Four Faces Of Nuclear Terror, and the Need for a Prioritized Response, 83 Foreign Aff. 130 (2004), at 130-131 : « terrorists present at least four different kinds of nuclear threats : that they will disperse highly radioactive material by conventional explosives (i.e., ‘dirty bombs’) or other means, that they will attack or sabotage nuclear power installations, that they will seize intact nuclear weapons and that they will steal or buy fissile material for the purpose of building a nuclear bomb. All four threats are real and merit the attention of policymakers. »

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As this paper’s ensuing, and most extensive, parts will seek to map out the extent to

which illicit trafficking has been captured by currently existing international criminal

law provisions, the next part will do nothing more than to situate the crimiminal law

enforcement approach within, and to compare it with, the broader scheme of

strategies that have been mobilized by the international community, all of which

complement the efforts to hold individuals or corporations criminally liable for acts of

illicit nuclear trafficking. Through such overview, the limited but real role of ICL in this

area can be better appreciated and understood in its relationship with other

approaches.

II. THE PLACE OF CRIMINAL SANCTIONS AMIDST A MUCH BROADER LANDSCAPE SEEKING TO ADDRESS THE TRANSNATIONAL THREAT OF ILLICIT NUCLEAR TRAFFICKING The previous part has demonstrated that the discourse generated from within the

highest UN-bodies, does not speak lightly about illicit trafficking in nuclear

substances : together with similar trafficking in certain biological and chemical

substances, the Security Council considers this phenomenon to constitute a « threat

to international peace and security » within the meaning of the UN-Charter, thus

opening the door for particularly far-reaching actions under Chapter VII of this

Charter.

Given the fact that the Security Council’s discourse, as it gets eventually

incorporated into an adopted Resolution, still reflects the power play between the five

great powers30 that happen to have a veto-yielding seat in this body, such discourse

can by no means be considered to be the end of the story. Especially : it’s only

words, and words are all they have ! Which actions are taken by States to actually do

something about it ? Below, in the section on Resolution 1540, the focus will lie on

the Security Council’s decisions that require States to do something. Here, attention

lies on those initiatives and mechanisms that are set up by States to confront the

threat, outside of the Security Council’s decisions.

In what follows, (a) will provide an overview of the various efforts that have been

undertaken to prevent illicit nuclear trafficking from occurring in the first place, after

30 For an excellent historical and politicological treatment, see Paul Kennedy, THE PARLIAMENT OF MAN : THE UNITED NATIONS AND THE QUEST FOR WORLD GOVERNMENT, Penguin Books, 2006, especially relevant for the Security Council’s composition and importance are pages 51 – 76

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which (b) will map out the interrelationship of prevention versus criminalization, and

the respective (dis)advantages of the latter.

II.a Prevention comes first : States as exclusive adressees of obligations ? Most official documents and literature that are concerned with the problem of illicit

trafficking in nuclear materials and other radioactive substances, do not analyse the

issue from the point of view of ICL. Rather, the focus rests on what is and remains

most important : development of legal and strategic mechanisms for preventing that

illicit trafficking can happen in the first place and that unauthorized individuals could

obtain access over these materials. Physical protection of nuclear material and their

accountancy are rightly considered to be the first line of defence against illicit

trafficking.31

Two questions are crucial, and need to be separated in this regard : where is the

action taken and who is bound by the obligations or by the governance framework’s

scope of activities ?

In all initiatives that are taken by to prevent illicit nuclear trafficking, the action to be

taken, and the obligation for doing so, exclusively lies with either an international

organization or the States themselves. Traditionally, nuclear security has indeed

mostly been regulated through an arms control approach, binding only States. Both

the substantive and instutional aspects of the international legal framework that

regulates nuclear security, have originated in the post-WWII world, some of them

directly inspired by the Cold War paradigm.

Such exclusive State-centeredness cannot be more than a very partial answer to the

threat of illicit nuclear trafficking : as the nuclear black market does not primarily

involve State actors, but there is here an interplay between subnational,

transnational and international forces, more entities need to be thought of. Though

31 IAEA, General Conference, GC(42)/17, Security of Material : Measures against Illicit Trafficking in Nuclear Materials and Other Radioactive Sources, 27 August 1998, § 10. See also Anita Nillson, International Atomic Energy Agency Programma against Illicit Trafficking in Nuclear Materials and Radioactive Sources, in COMBATING TRANSNATIONAL CRIME : CONCEPTS, ACTIVITIES AND RESPONSES, Phil Williams and Dimitry Vlassis (eds.), Frank Cass Publishers, 2001, 315 – 320 at 318.

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such interplay is of course not unique to the challenge of tackling illicit trafficking32, it

demonstrates that international law remains ill-equipped to address a threat which

involves non-State actors.33 No matter how effective, curbing the proliferation of

nuclear weapons vis-à-vis States will indeed not necessarily shield us from the

danger of their use by non-State actors.34

Two different fields have rightly been differentiated : the legal framework of nuclear

non-proliferation is designed to restrain States, whereas the emerging legal

framework of nuclear security adresseses the threat that comes from non-state

actors.35

While ICL has no role to play in the nuclear non-proliferation area, it is potentially a

central piece of the nuclear security architecture : if and when States have ratified

the relevant ICL-treaties, and have implemented them into their domestic legal order,

non-State actors can be held directly liable for the internationally agreed upon

proscriptions. Neither the ratification nor the implementation stage, however, are

universally guaranteed and self-executing. ICL’s reach will therefore never be

universal. For good reasons, it should not be the primary strategy either to address

the threat of illicit trafficking. Prevention is indeed better than the cure, and States

have developed initiatives in that realm both through formal, hard law treaties, and

initiatives of varying binding normativity.

Both the cornerstone arms control treaty for nuclear security - the 1968 Nuclear Non-

Proliferation Treaty (NPT) - on the one hand, and the Nuclear Suppliers Groups as

the relevant informal multilateral export control regime that complements it, on the 32 Using such conceptual framework for an analysis of human trafficking and money laundering, and the way the law has attempted to address these phenomena, see Lan Cao, The Transnational and Subnational in Global Crimes, 22 Berkeley J. Int’l L. 59 (2004). 33 See also the remarks by David A. Kaplow, during Are International Institutions Doing Their Job ? Nuclear-Non Proliferation and Weapons Control, 90 Am. Soc’y Int’l L. Proc. 565, 571. 34 Cfr. William C. Potter, Charles D. Ferguson and Leonard S. Spector, The Four Faces Of Nuclear Terror, and the Need for a Prioritized Response, 83 Foreign Aff. 130 (2004), at 132. 35 Carlton Stoiber, Nuclear Security : An Emerging Domain of International Nuclear Law, 3, in the proceedings of the 2007 Congress of the International Nuclear Law Association, to be published by Bruylant : « For nuclear non-proliferation, the primary focus is on monitoring or restraining activities by national governments that could lead to the acquisition of nuclear weapons, with responses emphasizing international legal and political commitments, export-import controls, verification through an international body (IAEA safeguards), and—to a limited extent—UN Security Council sanctions. For nuclear security, the primary focus is on the intentional misuse of nuclear or other radioactive materials by non-State terrorist or criminal elements, with responses emphasizing physical protection measures, border monitoring, law enforcement, intelligence gathering and sharing of information ».

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other hand, have as one of their underlying aims to ensure that unauthorized access

can be prevented and that control can be exercised over those who legally obtain

such access to the materials in question.36This duality of a classic, treaty-based

system versus a non-legally binding, political arrangement, is significant : ensuring

compliance by States with international norms in the area of nuclear security does

not necessarily require that these norms be enshrined in classic treaties for which

States have formally indicated their willingness to be bound.37

In parallel with intrastate cooperation through either treaties or informal export

control regimes, some strategies of prevention have been channeled through the

formal, multilateral framework of international organizations. Both organizations of a

universal reach such as the United Nations General Assembly38, the International

Atomic Energy Agency,39the World Customs Organisation, and of a regional

36 Treaty on the Non-Proliferation of Nuclear Weapons, opened for signature July 1, 1968, 729 U.N.T.S. 161 (entered into force March 5, 1970), with the system of international nuclear safeguards, none of which is however directly concerned with the problem of unauthorized access/transfer etc. by non-State actors. 37 See for a nuanced analysis of this possibility, Richard L. Williamson, Jr., Hard Law, Soft Law and Non-Law in Multilateral Arms Control : Some Compliance Hypotheses, 4 Chi. J. Int’l L. 59. See generally David Sloss, Do International Norms Influence State Behavior ? , 38 Geo. Wash. Int'l L. Rev. 159 (2006), as well as Ryan Goodman and Derek Jinks, Towards an Institutional Theory of Sovereignty, 55 Stan. L. Rev. 1749 (2003). See also Kenneth W. Abbott and Duncan Snidal, Hard and Soft Law in International Governance, 54 International Organization, 421, Vol. 3 (2000). But see Daniel H. Joyner, Restructuring the Multilateral Export Control System, Journal of Conflict & Security Law, 9 J. Conflict & Security L. 181 (2004). 38 In a remarkable step, the UN General Assembly adopted in 2006, a Resolution (The United Nations Global Counter-Terrorism Strategy, G.A. Res. 60/288, U.N. Doc. A/RES/60/288 (20 September 2006)), with an annexed Plan of Action, embodying a Global Counter-Terrorism Strategy. As part of the « Measures to Prevent and Combat Terrorism », States declared their resolve, in the Plan of Action, « in particular by denying terrorists access to the means to carry out their attacks » (underlining added), « to strengthen coordination and cooperation among States in combating crimes that might be connected with terrorism, including (...) smuggling of nuclear, chemical, biological, radiological and other potentially deadly materials ». Generally, the UN General Assembly remains predominantly within a paradigm of prevention, such as for example in Resolution 57/83 of 22 November 2002. Recently, in 2005 (Resolution 60/73 of 08 December 2005), the General Assembly dealt with the issue of radiological terrorism, unsurprisingly focusing its attention on the issue of prevention. See generally Pierre Klein, LE DROIT INTERNATIONAL A L’EPREUVE DU TERRORISME, Recueil des Cours de l’Académie de la Haye, 2005, pages 323-325. 39 There is a long list of resolutions on ‘Measures Against Illicit Trafficking in Nuclear Material’ that have been adopted by the IAEA General Conference, beginning with Resolution GC(XXXVIII)/RES/15 of September 1994, in which the General Conference « Calls upon Member States to take all necessary measures to prevent illicit trafficking in nuclear material. » and supports the initiatives that are provided by the Agency in support of Member States’ capacity building : primary responsibility for such prevention remains with States, though the Agency has a recognised role as a facilitator. . See, also the Reports by the Directo General to the General Conference on ‘Measures against Illicit Trafficking in Nuclear Materials and Other Radioactive Substances’, GC(39)/19 of 21 August 1995 & GC(40)/15 of 20 August 1996 and the ‘Resolution on Measures to Improve the Security of Nuclear Materials and Other Radioactive Materials’, GC(45)/RES/14 of September 2001, reprinted in 41 I.L.M. 743 (2002).

13

reach40[41], such as the European Union41, have developed documents, action plans

etc. that have as one of their aims the prevention of illicit nuclear trafficking.

However, far from all recent multilateral action in this field is to be sought in the

traditional institutions : whereas the post-World War II international legal order relied

on centralized bureaucratic agencies to further the cause of non-proliferation and

whereas this order was exclusively focused on States as its object of verification, the

post-911 international legal order has had to grapple with the need to complement

this State-focused approach with a much more decentralized approach42 through

which regulatory control can be leveraged vis-à-vis non-state actors. Nuclear

security has thus become a central feature of any strategy to complement the legal

framework of non-proliferation.

More and more indeed, such efforts, all of them with an explicitly indicated aim of

being anti-terrorist measures, are being developed by States outside any separate

treaty-basis or without any resort to the mechanisms that can be deployed through a

formal international organization : initiatives such as the Proliferation Security

Initiaitive43, partnerships such as the G8 Global Partnership,44 a number of

40 About the possible advantages of a regional approach, as compared to a global approach, see Chamundeeswari Kuppuswamy, Is the Nuclear Non-Proliferation Treaty Shaking at its Foundations ? Stock Taking after the 2005 NPT Review Conference, 11 J. Conflict & Security L. 141, 148 (2006). 41 In December 2003, the Council of the European Union (15708/03) adopted an EU Strategy against the Proliferation of Weapons of Mass Destruction, and a Personal Representative for Non-Proliferation of Weapons of Mass Destruction was appointed by EU High Representative Javier Solana. In order to strengthen the norms of the multilateral treaty regimes in the field of WMD, § 17 calls for « providing for criminalisation of violations committed under the jurisdiction or control of a State ». In December 2006, the Council of the EU (16694/06), established a WMD Monitoring Centre. See generally Milagros Alvarez-Verdugo, Comparing U.S. and EU Strategies against Weapons of Mass Destruction : Some Legal Consequences, 11 Ann. Surv. Int'l & Comp. L. 119, 129-135, (2005), as well as Stephen Pullinger and Gerrard Quille, The European Union : Tackling the Threat from Weapons of Mass Destruction, ISIS Europe Discussion and Policy Paper, 2004, available via http://isis-europe.org/reportwmd1.pdf 42 Thomas D. Lehrman, Enhancing the Proliferation Security Initiative : The Case for a Decentralized Non-Proliferation Architecture, 45 Va. J. Int’l L. 223 (2004-2005). 43 The Proliferation Security Initiative, see Fact Sheet, The White House, The Proliferation Security Initiative, Statement of Interdiction Principles (September 4, 2003), available at http://www.whitehouse.gov/news/releases/2003/09/20030904-11.html, and the backgrounder from the US State Department, available at http://usinfo.State.gov/products/pubs/proliferation/proliferation.pdf See generally Michael Byers, Policing the High Seas : The Proliferation Security Initiative, 98 Am. J. Int’l L. 526 (2004) ; Michael A. Becker, The Shifting Order of the Oceans : Freedom of Navigation and the Interdiction of Ships at Sea, 46 Harv. Int’l L. J. 131 (2005) and Daniel H. Joyner, The Proliferation Security Initiative : Nonproliferation, Counterproliferation and International Law, 30 Yale J. Int’l L. 507 (2005). 44 The 2002 G8 Global Partnership against the Spread of Weapons and Materials of Mass Destruction, with its ‘Principles to prevent terrorist, or those that harbour them, from gaining access to weapons or materials of mass destruction’ at http://www.g8.gc.ca/2002kananaskis/globpart-en.asp . The G8 summits that have followed, have built upon these principles. Describing and analysing this Partnership, see Mary Beth Nikitin, The G8 Global Partnership. Adressing Threats Old and New, 30 Fletcher F. World Aff. 101 (2006).

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cooperative threat reduction programmes, initiated by the USA, whether or not acting

in concert with other States45 46 and most of which deal with the Russian legacy47,

have truely been blossoming in the post-911 world. None of them has been

negotiated within the corridors of the United Nations in New York, Vienna or Geneva.

Some of them have not even been signed as international lawyers understand the

concept ‘signature’ as an act that can express, in certain circumstances, a consent to

be bound by what subsequently becomes a legally binding commitment.48 Taken

outside the formal structures of intergovernmental institutions, these efforts are

agreed upon by States on an ad hoc basis and with widely varying participation

structures and membership lists, as they are often composed of different categories

of participating States.49

These initiatives, however framed, do not operate as lonely gravitating endeavours,

as some of these new structures have explicitly been recognised as being of a

complementary nature vis-à-vis the classic treaties.50Their existence does not mean

either that the arms control approach has been abandoned51, rather that the need to

complement it has been acutely realized and responded to52 by crafting new

responses that are more finetuned in order to address the threat posed by

transnational non-State actors that are engaged in illicit nuclear trafficking.

45 E.g., the US Megaports Initiative, administered by the US National Nuclear Security Administration, see Factsheet Megaports Initiative : Protecting the World’s Shipping Network from Dangerous Cargo and Nuclear Materials, available at http://www.nnsa.doe.gov/docs/Megaports_Initiative.pdf A similar example is the bilateral US – Russia «Global Initiative to Combat Nuclear Terrorism », available at http://www.whitehouse.gov/news/releases/2006/07/20060715-3.html 46 For an extensive analysis of the current system, and a call for multilateralizing the latter, see James S. Kraska, Averting Nuclear Terrorism : Building a Global Regime of Cooperative Threat Reduction, 20 Am. U. Int’l L. Rev. 703 (2004-2005) 47 For an overview of some of the American initiatives vis-à-vis Russia, see Leah Pettitt, Weapons of Mass Destruction Stockpiled in Russia : Should the United States Continue to Implement Programs Designed to Reduce and Safeguard these Weapons ? , 16 Transnat’l Law. 169 (2002-2003). 48 Vienna Convention on the Law of Treaties, UN Doc. A/CONF.39/27 (May, 23,1969), reprinted in 8 Int’l Legal Materials 679 (1696), Articles 11 – 15 on (Art. 11) ‘Means of expressing consent to be bound by a treaty’ and (Art. 12) ‘Consent to be bound by a treaty expressed by signature’. 49 For the ‘amorphous’ nature of the Proliferation Security Initiative and its categories of participants, See Mark R. Schulman, The Proliferation Security Initiative and the Evolution of the Law on the Use of Force, 28 Hous. J. Int’l L. 771, 773, 798 – 892. 50 See Report of the Secretary General, In Larger Freedom : towards development, security and human rights for all, A/59/2005, 21 March 2005, §100 : « While the (NPT) remains the foundation of the non-proliferation regime, we should welcome recent efforts to supplement it. These include Security Council Resolution 1540 (2004), designed to prevent non-State actors from gaining access to nuclear (...) weapons, technology and materials and their means of delivery ; and the voluntary Proliferation Security Initiative, under which more and more State are cooperation to prevent illicit trafficking in nuclear (...) weapons. » 51 Cfr. Nina Tannenwald, Keeping Weapons from Terrorists : the Urgent Need for Arms Control, 8 Brown J. World Aff. 27 (2001- 2002). 52 See David P. Fidler, International Law and Weapons of Mass Destruction : End of the Arms Control Approach ?, 14 Duke J. Comp. & Int’l L. 39 (2004).

15

Part of this funetuning shall need to consist of providing for criminal sanctions that

can be imposed upon individuals that violate the rules. It is to the respective

advantages and disadvantages of such criminal law approach, as compared to all

strategies geared towards prevention, that we shall turn in the next section.

Obviously, this is not an or – or issue : both are a necessary component of any

strategy deemed to be comprehensive in tackling the threat of illicit nuclear

trafficking.

II.b. Prevention versus Criminalization in Dealing with Illicit Trafficking of Weapons of Mass Destruction : Respective Advantages and Disadvantages Only an utopic outlook on the just described measures that have been taken to

prevent illicit nuclear trafficking could lead to a self-congratulatory mood that these

measure will provide a watertight system which would entirely preclude illicit nuclear

trafficking. Therefore, it needs to be asked to what extent States have sought to

complement the traditional arms control approach with a law enforcement approach

which relies on criminalization of particular conduct, in order to catch these non-State

actors.53

Once all efforts geared towards prevention have failed, the international community

is indeed confronted with the situation whereby a particular nuclear material or

radioactive source has fallen outside the regular circuit in which control can be

exercised. Instead, a possibly very long chain of smugglers, traders, merchants,

organised criminal groups, terrorists and less than scrupulous States, can all

possibly be thought of as categories through the hands of which these substances

pass. The invididuals involved in this chain, may or may not have an intention to use

the substance themselves, and they may or may not be aware of the eventual abuse

that someone else is contemplating. Can any of this diverse group of individuals be

brought to justice and be criminally sanctioned ?

As the remainder of this paper is limited to an analysis from the point of view of ICL,

it is important, before delving into ICL’s substantive and jurisdictional aspects, to

consider how this approach interrelates with other fields of international law and with

other tactics that have been employed by States and international organizations in

order to address illicit nuclear trafficking. 53 David P. Fidler, International Law and Weapons of Mass Destruction : End of the Arms Control Approach ?, 14 Duke J. Comp. & Int’l L. 39, 77-78 (2004).

16

The strength of ICL lies indeed in the fact that individuals or – when a particular

domestic system allows for it under certain circumstances – corporations, can be

held directly and individually liable for having violated prohibitions that have been

enshrined in documents of an international legal nature. This feature of ICL, in that

ICL is addressed towards non-State actors and not to international law’ classic

addressees, States, renders it particularly suitable to be mobilized as part of a

broader framework of tools.

Why? Illicit nuclear trafficking does not only, or not even predominantly, result from

the actions of State actors. Rather, the driving force behind this market are non-State

actors that originate within one or more States. The threat posed by these non-State

actors, however, potentially targets not only the State in which they originated : other

States are at risk too. Hence, even when the source of the threat is purely to be

situated within the failures of a particular domestic system, the threat’s nature is

undoubtedly transnational. In international law in general54, and in the field of the law

governing nuclear non-proliferation in particular, the interstate legal system has

traditionally, and definitively prior to 200455, been powerless to deal with such a

threat. Hence the importance of a legal framework such as ICL that has the capacity

to bind non-state actors.

There is no point in denying that such ex post facto trials, by definition, come too late

and that the international community’s immediate reaction, when confronted with a

case of illicit trafficking, should consist of making sure that the authorities have the

right technical expertise and capacity to safely handle the threat. Within such

paradigm of being reactive to a wrong already occurred, the criminal justice system

will almost inevitably fail to retrieve all those involved.

Despite its being selective56 in terms of who will be subjected to it, ICL is a vital

component of any robust strategy to address the threat. Its repressive character vis-

54 For an analysis of the implications thereof, and for a normative argument that international law should be made more attuned to be able to strengthen domestic law and institutions to address international threats, see Anne-Marie Slaughter and William Burke-White, The Future of International Law is Domestic (or, the European Way of Law), 47 Harv. Int’l L.J. 327, 328 & 330 (2006). 55 When UN Security Council Resolution 1540 was adopted, see infra. 56 On the selectivity of international criminal law, see Robert Cryer, PROSECUTING INTERNATIONAL CRIMES : SELECTIVITY AND THE INTERNATIONAL CRIMINAL LAW REGIME (Cambridge University Press, 2005) and Robert Cryer, The Boundaries of Liability in International Criminal Law, or ‘Liability By Stealth, 6 J. Conflict & Sec. L. 3 (2001).

17

à-vis some will hopefully57deter others to even think about engaging in illicit nuclear

traffic. The claim is not that such deterrence can only be achieved through criminal

prosecution : other means, such as the media’s role in reporting about the threat,

can equally play a deterring role.58

Most of the ‘prevention’-instruments that have been described above, however,

contain no ICL-dimension at all. Only States take up commitments under the NPT

and the Nuclear Suppliers Group, and none of both obliges States to render a

violation of its proscriptions a criminally sanctionable offence for which non-state

actors can be held liable. Thus, the two basic fora for international nuclear non-

proliferation, the NPT and the Nuclear Suppliers Groups, both lack any nexus with

individual criminal liability.

This absence of criminal law considerations in the cornerstone texts for non-

proliferation stands in contrast to the basic text for international chemical non-

proliferation, the Chemical Weapons Convention, which contains quite elaborate

obligations for States parties to enact criminal law provisions, based on both the

principles of territoriality and active nationality, as source of granting jurisdiction.59 60

57 It remains hard to assess to what extent criminal sanctions have a deterring effect vis-à-vis those considering to engage in illicit nuclear trafficking. See, however, Barry Kellman, Bridling the International Trade of Catastrophic Weaponry, 43 Am. U. L. Rev. 755, 842 : « Because the primary motivation for proliferation is pecuniary, not ideological, the most effective penalties would impose adverse economic consequences. If pursuit of profits from selling weapons-critical items carried penalties that vastly outweighed the gains, the motivation to participate in that market would be substantially diminished. Combined with stringent efforts to detect clandestine activity, stipulating penalties would render proliferation a bad business risk. » For a discussion of this issue in the field of conventional arms trafficking, see Drugs and Small Arms : Can Law Stop the Traffic ?, 81 Am. Soc’y Int’l L. Proc. 44 (1987). 58 Bruce Hoffman and David Claridge, Illicit Trafficking in Nuclear Materials, Conflict Studies 314/315, January / February 1999, at 25 : «(...) many observers argue that the media’s intense reporting and accompanying sensationalisation of this threat have maximised the inherent risks in this traffic and have therefore inadvertently created an effective deterrent to the more professional criminals. » 59 Though a little outdated, for an in-depth analysis comparing the substantive and institutional approaches taken in nuclear proliferation versus the approach taken in chemical proliferation, and their respective inspection regimes, see David S. Gualtieri, Barry Kellman, Kenneth E. Apt, Edward A. Tanzman, Advancing the Law of Weapons Control – Comparative Approaches to Strengthen Nuclear Non-Proliferation, 16 Mich. J. Int’l L. 1029 (1994-1995) 60Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, 1993, Art.7 on ‘National Implementation Measures’, §1 : « Each State Party shall, in accordance with its constitutional processes, adopt the necessary measures to implement its obligations under this Convention. In particular, it shall: (a) Prohibit natural and legal persons anywhere on its territory or in any other place under its jurisdiction as recognized by international law from undertaking any activity prohibited to a State Party under this Convention, including enacting penal legislation with respect to such activity; (b) Not permit in any place under its control any activity prohibited to a State Party under this Convention; and (c) Extend its penal legislation enacted under subparagraph (a) to any activity prohibited to a State Party under this Convention undertaken anywhere by natural persons, possessing its nationality, in conformity with international law».

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Similarly, in the field of biological security, its cornerstone document, the Biological

Weapons Convention, contains in Article IV61 a requirement for States to enact

prohibitions that are applicable to non-State actors. Though far from perfect in

terms of its reach and in terms of its actual implementation62, there is at least a

nexus, in the field of biological and of chemical security, between the basic treaty

text on the one hand, and having the latter encourage States to regulate non-State

actors. Both the Biological and the Chemical Weapons Convention remain primarily

directed to the acts of State, and none of both contains any provisions about

extradition, but they at least indirectly touch upon individual responsibility. None of

this is true for the instruments of nuclear security.

As will be obvious below, the criminalization of those having violated the provisions

on nuclear security remains inherently linked to a context of terrorism. Contrary to

other reflections and proposals that have been developed at high level to further

strengthen the fields of biological and chemical weapons by using an ICL-approach

that is not intimately linked to a context of terrorism,63the nuclear field is just at the

beginning in this regard. Therefore, Security Council Resolution 1540 of April 2004,

already mentioned above and which will be discussed below, created the equivalent

of an earthshake for the nuclear fieldby requiring States to criminalize certain

conduct. The Resolution’s impact upon the legal framework governing nuclear

weapons and substances, is indeed much bigger than it’s impact upon the legal

framework governing chemical and biological weapons and substances.64

Just like the NPT and the Nuclear Suppliers Group lack any requirement for States

to criminalize particular conduct, the same holds true, a fortiori, for the initiatives that

61 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, Apr. 10, 1972, 1015 U.N.T.S. 163. 62 For an argument about the primary need to strengthen the field of biological weapons proliferation by a more robus approach under ICL, see Barry Kellman, An International Criminal Law Approach to Bioterrorism, 25 Harv. J.L. & Pub. Pol’y 721 (2001-2002). 63 The best known example thereof is the Harvard/Sussex « Draft Convention on the Prevention and Punishment of the Crime of Developing, Producing, Acquiring, Stockpiling, Retaining, Transferring or Using Biological or Chemical Weapons », available via http://www.sussex.ac.uk/Units/spru/hsp/Draft%20Convention%20Feb04.pdf For a discussion of this Draft Convention, see Matthew Meselson and Julian Robinson, A Draft Convention to Prohibit Biological and Chemical Weapons under International Criminal Law, 28 Fletcher F. World Aff. 57 (2004). See also Barry Kellman, An International Criminal Law Approach to Bioterrorism, 25 Harv. J.L. & Pub. Pol’y 721 (2001-2002), as well as Christopher B. Harland and Angela Woodward, A Model Law : The Biological and Toxin Weapons Crimes Act : An Act to implement obligations under the 1972 Biological and Toxin Weapons Convention and the 1925 Geneva Protocol, International Review of the Red Cross, Volume 87, Number 857, 573 (2005). 64 Seth Brugger, International Law, Terrorism and Weapons of Mass Destruction : finding and filling the gaps, 57 Rutgers L. Rev. 803, 822 – 823 (2004-2005).

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have recently been taken by States in order to combat proliferation by non-State

actors. None of the initiatives such as the Proliferation Security Initiative and its

related cousins entail the adoption of a new treaty which would contain a

requirement for States to enact domestic provisions that criminalize the individuals or

corporations that are involved in the chain of illicit trafficking. Whatever violations of

the initiatives may by committed by non-State actors, adressing such violations will

not necessarily be done through criminal sanctions. Of course, a State may well

decide to enact such sanctions for particular conduct, but this will then entirely be

based on a sovereign legislator’s initiative and will not be based on an international

legal requirement to do so, as is the case for the instruments of ICL, where most

treaties contain an obligation for States to incorporate a particular criminalization into

their domestic legal order.

Admitting all the disadvantages that are inherent in any criminal law approach,

domestic or international, the case needs to be made for the latter of both : by

harmonizing the understanding as to what exactly has been subjected to

criminalization, and by providing for agreements about which State can exercise its

jurisdiction in case of links with multiple jurisdictions, as well as by providing for a

procedural framework through which these domestic criminal justice systems can

collaborate, an ICL-treaty allows for harmonization.

Through the latter approach, the crime is elevated into one that is, from the point of

view of the international community of States, considered more serious than one

which merely goes against the interests of a particular community. As will be

explored in this paper’s concluding part, such representative labelling is important in

order to fairly communicate the extent to which the conduct in question constitutes a

grave transgression of certain norms that are considered important, not just for the

parochial interests of a given jurisdiction, but going beyond this.

Not only does such international criminalization allow for greater harmony, it also

typically allows for some form of conventionally agreed upon extraterritorial

jurisdiction and for procedures of intrastate cooperation : subject to crucial issues

such as whether the States in question have ratified the treaty and whether the

latter’s criminalizations have been domestically incorporated, this allows for ensuring

that, if the State on whose territory the acts occured or whose national committed

these acts, is unwilling or unable to prosecute, that another State may step in,

provided that the jurisdictional requirements have been fulfilled, of course. The

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unwillingness to prosecute by the territorial state or by the state of nationality, has

turned out to be a real-life problem in the case of A.Q. Khan, in respect of which it is

alleged that Pakistan is afraid to actually prosecute him, given sensitivities amongst

its own population. Thus, international nuclear law’s international cooperation

principle65 gets extended, through imperfect at best, into the realm of international

criminal justice. It was this very feature of allowing for extraterritoriality, which

recently triggered one author to call for converting « nuclear transfer » into a crime

against humanity over which other States could equally exercise their jurisdiction.66

Though the precise modalities often differ, most treaties which provide for the

criminalization of particular conduct usually contain at least some provisions that

facilitate intrastate cooperation in terms of investigation, extradition, and in terms of

obligations to provide each other assistance etc.67This feature, however, is not

necessarily guaranteed and needs to be investigated per treaty.

It is exactly at this juncture that the analysis can shift towards ICL in this area : what

are its relevant structural features and to what extent does ICL provide for

possibilities to prosecute acts of illicit nuclear trafficking?

III. ILLICIT NUCLEAR TRAFFICKING MEETS INTERNATIONAL CRIMINAL LAW : A POLICY TERM IS OF NO USE IN A CRIMINAL COURT ! Parts III to VI all deal with the interrelationship, if any, between ‘illicit trafficking of

nuclear materials and other radioactive sources’ on the one hand, and ‘international

criminal law’ (herafter : « ICL ») on the other hand. Both of these terms suffer from

definitional ambiguity and possible open-endedness, entailing an effort to clarify the

concepts used.

65 Carlton Stoiber, Alec Baer, Norbert Pelzer & Wolfram Tonhauser, HANDBOOK ON NUCLEAR LAW, 10, International Atomic Energy Agency, Vienna, 2003, listing among the principles of international nuclear law, the ‘international co-operation principle’ : « the need for (...) the regulators of nuclear activities to maintain close relationships with counterparts in other States and in relevant international organizations. (...) the use of nuclear material involves security risks that do not respect national borders. Threats of terrorist acts and the threats associated with illicit trafficking in nuclear material and the proliferation of nuclear explosives have long been recognized as matters requiring a high level of international co-operation ». 66 Anne-Marie Slaughter and Thomas Wright, Punishment to Fit the Nuclear Crime, Washington Post, 2 March 2007, page A13 67 Barry Kellman and David S. Gualtieri, Barricading the Nuclear Window : A Legal Regime to Curtail Nuclear Smuggling, 1996 U. Ill. L. Rev. 667, 711, 724 - 735 (1996), making a normative argument for the creation of a new crime of ‘smuggling of nuclear material’.

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While Part IV will expose the various understandings that can be had of ‘international

criminal law’, this Part explores which understanding the international community has

of the phenomenon when it uses the words ‘illicit trafficking’, and whether any of

these definitions of the term, have any relevance from the point of view of ICL.

To provide the conclusion to this question right away : illicit nuclear trafficking, or

whatever similar term, has nowhere been defined in a legally binding international

legal text, be it in general international law or in ICL. So far indeed, in this text, ‘illicit

trafficking’ has been used just like it is regularly used in most actors’ discourse,

notably as a catch-all term which describes a possibly very wide range of factual

scenario’s that are thought of. Once one shifts towards holding individuals criminally

liable, the principle of legality – a cornerstone of the human rights protections against

criminal prosecutions – requests more definitional precision than what is offered by

the currently available definitions,68 and the point is that the texts which use the

words do not only so in a rather loose manner, but that they also lack any criminal

dimension.

III.a Some Examples of A Definition In Policy Documents Four different definitions will cited here, only one of which (notably the fourth) comes

from a criminal law context, but which, in turn, is not specific to the nuclear context .

The sources of these four definitions are : (a) the definition used by the IAEA Illicit

Trafficking Database in describing its scope of application ; (b) the definition which is

used in the Handbook on Nuclear Law ; (c) the definition used in a Report of the UN

Disarmament Commission on international conventional arms transfers and ; (d) the

definition of ‘illicit trafficking’ as it has been used in the 2001 « Protocol against the

Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and

Ammunition », which is an international criminal law framework.

(a) The scope of the IAEA Illicit Trafficking Database is indicated as including :

«incidents, which involve unauthorized acquisition, provision, possession,

use, transfer or disposal of nuclear materials and other radioactive materials,

whether intentional or unintentional and with or without crossing

68 E.g. International Covenant on Civil and Political Rights, 1966, Art. 15 : « 1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed ».

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international borders, including unsuccessfull and thwarted events ».

(underlining added)

In addition, it is indicated, the Database’s scope equally includes « other related

unauthorized activities » involving nuclear and other radioactive materials. These

include incidents involving inadvertent loss and discover of such uncontrolled

materials, e.g. ‘orphan’ sources.69

The bottom line central to all definitions that will follow, is already obvious here : it

concerns acts that are unauthorized : An individual somehow interrelates with a

particular radiactioactive substance without having the necessary capacity or

authorization to do so.

(b) Likewise, though a bit less broad than (a), the Handbook on Nuclear Law States that :

« A widely accepted working definition of illicit trafficking reads as follows :

A situation which relates to the unauthorized receipt, provision, use, transfer

or disposal of nuclear materials, whether international or unintentional

and with or without crossing international borders. »70

Both under (a) and (b), the definition includes unintentional acts and applies

irrespective of whether or not an international border has been crossed. As will be

immediately obvious from the analysis of the ICL-treaties, none of both are accepted

as criminally relevant acts. First of all : unintentional acts cannot bear criminal

sanctions (issue of mens rea) as all ICL-treaties require some form of intentionality

before the criminal liability can be established. (see however the discussion infra

concerning the joint criminal enterprise-doctrine, and its conceptual uncertainties, in

‘VI.B Modes of Participation : Tackling the Illicit Traffickers through Joint Criminal

Enterprise Liability ?). Second : events of illicit trafficking that occur within the

confines of a single jurisdiction, will virtually never fall under the scope of application

of the relevant treaties with a criminal law dimension. For sure, such ‘one-

jurisdictional’ events could very well be subject to criminal sanctions, but the latter

will entirely have originated from a sovereign legislator’s initiative.

69 IAEA Illicit Trafficking Database (ITDB), Scope of the ITDB, via http://www.iaea.org/NewsCenter/Features/RadSources/PDF/itdb_31122004.pdf 70 Carlton Stoiber, Alec Baer, Norbert Pelzer & Wolfram Tonhauser, HANDBOOK ON NUCLEAR LAW, 154, International Atomic Energy Agency, Vienna, 2003.

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(c) In a 1996 Report71 on international conventional arms transfers, the UN Disarmament Commission wrote :

« Illicit arms trafficking is understood to cover that international trade in

conventional arms, which is contrary to the laws of States and/or

international law ».

This obviously remains far short of any relevance from the criminal law point of view :

mere illegality, does not necessarily imply that criminal sanctions are attached to it.

(d) Though ratione materiae unconcerned with the nuclear field, it is useful to

quote the definition of ‘illicit trafficking’ as used in the 2001 « Protocol against

the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and

Components and Ammunition, supplementing the United Nations Convention

against Transnational Organised Crime »72. Article 4 (1) of this document

renders it applicable to offences that are transnational in nature and which

involve an organized criminal group. Art 3(e) of this Protocol reads :

« ‘Illicit trafficking’ shall mean the import, export, acquisition, sale, delivery,

movement or transfer of firearms, their parts or components and ammunition

from or across the territory of one State Party to that of another State

Party if any one of the State Parties concerned does not authorize it in

accordance with the terms of this Protocol or if the firearms are not

marked in accordance with article 8 of this Protocol ».

Here, it is immediately obvious that the definition of ‘illicit trafficking’ requires, as one

of the offence’s constitutive elements, that multiple jurisdictions are involved. Apart

from the drastic difference between the policy texts, which include unintentional acts

into the definition of illicit nuclear trafficking, and the ICL-texts where intentionality

will always be a requirement (see however the discussion infra concerning the joint

criminal enterprise-doctrine, and its conceptual uncertainties, in ‘VI.B Modes of

Participation : Tackling the Illicit Traffickers through Joint Criminal Enterprise

Liability ?), as already indicated, this is a second difference : while the policy texts

include incidents within the definition of illicit nuclear trafficking irrespective of

71 United Nations, Report of the Disarmament Commission, G.A. Res. 51/42, U.N. Doc. A/51/42, Supplement No. 42, May 22, 1996, in Annex I, Guidelines for international arms transfers in the context of General Assembly Resolution 46/36 H of 6 December 1991. 72 Protocol against the Illicit Manufacturing of and Trafficking in Firearms,Their Parts and Components and Ammunition, supplementing the United Nations Convention against Transnational Organised Crime, G.A. Res. 55/255, U.N. Doc. A/RES/55/255 (Jun. 8, 2001).

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whether or not an international border has been crossed, the ICL-treaties will virtually

always require an element of transnationality.

→ These were but four examples to demonstrate a larger point. Other texts can be

found where the same words equally figure. There is indeed a long list of IAEA

Resolutions, Programmes etc., all of which use the words ‘illicit trafficking in nuclear

material’ or ‘illicit nuclear trafficking’.73 None of theses texts, however, deals with

criminal law provisions that should be enacted by States and be made applicable to

individuals. Conversely, ‘illicit trafficking’ is as such, and under these terms, nowhere

rendered subject to criminal sanctions, despite the fact that everyone speaks about

‘illicit trafficking’ in policy terms. Furthermore, it needs to be pointed out that the

relationship, in terms of definition, between the concets of ‘illicit trafficking’ and

‘brokering’ is not alltogether clear.74

The texts which use the term ‘illicit nuclear trafficking’, all indicate that it is an

umbrella term which has absolutely no usefulness from the criminal point of view.

Most texts that use the term, other than the four contrary examples provided above,

do so without even providing the beginning of a definition or explanation as to what is

understood by it. Rather, the terms are used as a policy term with a working

definition which is apt to denote a problem in respect of which everyone understands

what it is more or less about.

The existing definitions of ‘illicit trafficking’ that have been quoted above, all

immediately resort to the provision of specific actions that are thought of, all of which

have in common that these specific actions are done by an individual that lacks the

authorization to do so. Underneath this umbrella term, the international policy

community manages to conduct a wide range of activities in order to counter a

73 In addition to a ‘Programme for Preventing and Combatting Illicit Trafficking in Nuclear Material’ (INFCIRC/509, June 4, 1996), there is a long list of resolutions on ‘Measures Against Illicit Trafficking in Nuclear Material’ that have been adopted by the IAEA General Conference, beginning with Resolution GC(XXXVIII)/RES/15 of September 1994, in which the General Conference « Calls upon Member States to take all necessary measures to prevent illicit trafficking in nuclear material. » and supports the initiatives that are provided by the Agency in support of Member States’ capacity building : primary responsibility for such prevention remains with States, though the Agency has a recognised role as a facilitator. . See, also the Reports by the Directo General to the General Conference on ‘Measures against Illicit Trafficking in Nuclear Materials and Other Radioactive Substances’, GC(39)/19 of 21 August 1995 & GC(40)/15 of 20 August 1996 and the ‘Resolution on Measures to Improve the Security of Nuclear Materials and Other Radioactive Materials’, GC(45)/RES/14 of September 2001, reprinted in 41 I.L.M. 743 (2002). 74 See for example SC 1762 (2007), concerning Iraq, in which the Council « not[es] Iraq’s commitment to detect, deter, prevent and combat, including through international cooperation when necessary, the illicit trafficking and brokering in nuclear, chemical and biological weapons and their means of delivery and related materials (...) ».

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phenomenon which is perceived as a threat : illicit nuclear trafficking seems to be

one of those « we know it when we see it »75 phenomena, in respect of which things

are much more complicated once the term needs to be precisely defined.

Functionally speaking, however, the concept works for its purpose and as long as

one does not seek to operationalise it within a criminal court.

Contrary to this frequent use of the term in policy texts, and contrary to its open-

ended nature in these fora, none of the potentially relevant ICL-texts that will be dealt

with below use the words ‘illicit trafficking’ in their respective parts on the crime’s

actus reus. While illicit nuclear trafficking is what it’s all about, the label does not

exist in current ICL.

In short, no one can be prosecuted for a ‘crime of illicit trafficking’, unless a domestic

legislator has adopted a law where the term is used. The latter hypothesis will in any

event entirely depend on that legislator’s own initiative, which is nowhere precluded

but which is not required either by ICL. Unless the latter hypothesis applies, any

prosecution will need to be based on one or more of the particular acts that have

been explicitly criminalized and have been labelled in different terms than by using

the ‘illicit trafficking’ words. As will be further elaborated upon in the Conclusion, this

is worrying if one tries to have criminal law pursue a policy of « representative

labelling » : the connotation of the crime for which one is charged, needs to convey a

message of the gravity with which the international community perceives the act.

III.b Challenges for a Prosecutor When Confronting Existing Treaties of International Criminal Law Parts IV and V deal at great length with the actual substance of the current treaties

that could be invoked when seeking to hold individuals criminally liable for acts of

illicit nuclear trafficking. Before getting to that stage, it is worth pointing out some of

the structural hurdles which will be confronted by any prosecutor seeking to hold

individuals accountable. Therefore, some of these structural features of ICL will be

identified in this section.

Contrary to the looseness which is fully permitted when describing the phenomenon

in policy texts, criminal law requires extreme definitional precision, against the

75 In a very famous holding in a US Supreme Court case, Justice Stewart wrote that, whereas he did not manage to define what was pornography : « I know it when I see it ». See Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring).

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background of which the facts need to be tested. ICL has indeed its own, very

exacting requirements, to set out and define the actus reus (conduct) and mens rea

(state of mind of the accused), before one can speak of a crime, and a prosecutor

will need to assess which conduct has exactly been criminalized by the texts, vis-à-

vis which dangerous materials that such criminalization has been enacted, and what

State of mind the accused needs to have had before it is possible to convict him/her.

In other words : to what extent is ‘illicit trafficking’ regulated through ICL, and to what

extent is the respective overlap between both incomplete ? The challenge will be to

disentangle the ‘illicit trafficking’ concept, which has at most a pre-legal meaning in

ICL, into its various components and to see which of these bears any relevance from

the point of view of ICL.

While all concepts that have been used by the ICL-treaties belong to what is

generally thought of as ‘illicit trafficking’, the reverse is definitively not the case : far

from all acts that are usually brought under the heading ‘illicit trafficking’, have been

criminalized, and those that have been criminalized have quite frequently only been

done so because of their nexus with terrorism. The current international criminal

legal framework simply does not recognise a separate crime of illicit trafficking. Nor,

by the way, is there in ICL a separate crime of nuclear smuggling.76

Contrary to what is the case for two crimes that have been regulated as part of the

‘transnational organized crime’ issue, notably trafficking in persons77 and trafficking

in firearms78, or contrary to what is the case for trafficking in narcotics79, illicit nuclear

76 Barry Kellman and David S. Gualtieri, Barricading the Nuclear Window : A Legal Regima to Curtail Nuclear Smuggling, 1996 U. Ill. L. Rev. 667, 680 (1996), arguing normatively that « Nuclear smuggling must be defined incontrovertibly as an international crime so that powerful law enforcement modalities can be applied. The Physical Protection Convention defines some smuggling activities as criminal, but significant gaps in coverage should be filled. Also, the crime of nuclear smuggling should not be grouped together with other forms of terrorism ». Cf. Burrus M. Carnahan, Nuclear Smuggling as an International Crime, 28 Akron L. Rev. 417, 419 (1995). 77 United Nations Convention against Transnational Organized Crime, in G.A. Res. 55/25, U.N. Doc. A/RES/55/25 (Jan. 8, 2001), see Annex II, Protocol to Prevent, Suppres and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention againsst Transnational Organized Crime. Analysing the Protocol, and the way States could prosecute the crimes involved, see generally LeRoy G. Potts, Jr., Global Trafficking in Human Beings : Assessing the Success of the United Nations Protocol to Prevent Trafficking in Persons, 35 Geo. Wash. Int’l L. Rev. 227 (2003). Annex III to the United Nations Convention against Transnational Organized Crime contains a Protocol against the Smuggling of Migrants by Land, Sea and Air. 78 Protocol against the Illicit Manufacturing of and Trafficking in Firearms,Their Parts and Components and Ammunition, supplementing the United Nations Convention against Transnational Organised Crime, G.A. Res. 55/255, U.N. Doc. A/RES/55/255 (Jun. 8, 2001). Article 5 contains the acts that are to be made criminal offences. 79 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, U.N. Doc. E/Conf. 82/16, reprinted in 28 Int’l Legal Materials 493 (1988).

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trafficking has neither been regulated in a separate treaty, nor has it been separately

codified as part of a larger ICL-framework which regulates the nuclear field.

All that can be done by a prosecutor who seeks to hold an individual accountable, is

to resort to the wide variety of treaties that could be invoked, in order to see which

acts that fall under the broader heading of ‘illicit trafficking’ have been criminalized.

That analysis will consume quite some space below. In any event : far from the

entire scope of actions that qualify as ‘illicit trafficking’ in a policy understanding, are

strengthened through criminal sanctions.

Thus, we have come to the preliminary conclusion that none of the policy texts that

were cited above, are directly relevant in a criminal court : with the exception of

Resolution 1540, that will be more extensively elaborated upon below, none of the

texts that have been invoked so far, can be directly invoked in front of a criminal

judge. Even Resolution 1540 cannot be directly relied upon, given the intermediary

requirement for States to enact criminal legislation.

The texts do not criminalize ‘illicit nuclear trafficking’ or anything semantically related

as such, and don’t request to establish criminal sanctions in the first place.

Therefore, the possible answer to the question which ICL-framework applies to acts

of illicit nuclear trafficking, will have to come from within this very framework as it

currently stands.

It is to the ICL-framework that attention will now be shifted. The structure adopted is

as follows : Part IV will assess whether the International Criminal Court could have

any role to play, or whether the three crimes to which its jurisdiction is currently

confined, could be resorted to as a label by a domestic prosecutor. It is argued that

none of both is the case : the International Criminal Court , as currently set up and

designed, has no role whatsoever to play in the fight against illicit nuclear trafficking.

Similarly, a domestic prosecutor will be unable to rely upon any of the three crimes to

which the Court’s jurisdiction is currently confined. This means, in short, that only

domestic prosecutors could have a role to play in the fight against this phenomenon,

and that they will need to seek other criminalizations than the ones that can be

resorted to by their colleague from the ICC.

The criminalization upon which such prosecution would then be based, could have

its origins either in a requirement by which the Security Council imposes upon States

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to enact criminal legislation on the one hand (this is Part V), or in the currently

existing treaties that impose upon States to enact legislation, on the other hand (this

is Part VI). But first, it needs to be demonstrated why nothing should be expected

from the ICC in terms of being a possible agent in the fight against illicit nuclear

trafficking.

IV. CAN ILLICIT NUCLEAR TRAFFICKING BE PROSECUTED AS ONE OF THE CORE CRIMES OVER WHICH THE INTERNATIONAL CRIMINAL COURT HAS JURISDICTION ? This Part will first of all shed some light, to the extent necessary for the paper, on the

multi-faceted notions of ‘international criminal law’ and ‘international crimes’, in order

to embark upon the way in which these notions are understood and operationalized

in general by the ICC.

IV.a One word, two different meanings : on international crimes So far, ‘international criminal law’ has been used without further elaboration.

Logically, it is to be distinguished from domestic criminal law, which exclusively

originates from a sovereign legislator’s initiative.

The word ‘international’, as part of ‘international criminal law’ needs to be further

conceptually refined : there are two different types of « international criminal law »,

thus indicating that the latter three words do not have a single, uniform meaning !

While both types concern the criminal aspects of international law,80 there is a

distinction between ICL sensu strictu, also called the ‘core’ crimes under

international law on the one hand,81versus crimes of a transnational nature that are

regulated and have been agreed upon via an international treaty but which need to

be incorporated domestically, on the other hand.

80 As opposed to the international aspects of domestic criminal law (e.g. human rights guarantees for criminal trials or inter-State agreements for the provision of research assistance in criminal matters, which can be invoked for any garden-variety of crimes), « the criminal aspects of international law consist of a body of international proscriptions which criminalize certain types of conduct irrespective of particular enforcement modalities and mechanisms », in M. Cherif Bassiouni, The Penal Characteristics of Conventional International Criminal Law, 15 Case W. Res. J. Int’l L. 27, FN. 2 (1983) 81 The expression is from Edward M. Wise, Terrorism and the Problems of an International Criminal Law, 19 Conn. L. Rev. 799, 805 (1986-1987).

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Particularly since the adoption of the Rome Statute of the International Criminal

Court, ICL falls indeed apart in, on the one hand, the atrocity crimes against human

rights interests, and, on the other hand, crimes that have been defined through

treaties but that are not core international crimes as such, and which correspond to a

wide range of interests. While the first category is at present confined to the four

crimes of aggression ; genocide ; crimes against humanity and war crimes, the

second category is much longer and embodies a wide range of treaty-based

offences, whereby States cooperate in order to ensure their repression. While the

first category does not necessarily contain a transboundary element – genocide is

considered sanctionworthy because of the very nature of the crime and because of

the international values and interests it harms, even if the conduct in question takes

places entirely within the confines of a single jurisdiction – the second category

criminalizes certain conduct that transcends national borders and that is considered

to be of international concern. Therefore, ICL falls apart in ICL sensu strictu versus

the category of ICL that, it has been suggested elsewhere, could appropriately be

thought of as being transnational criminal law.82 The latter can only be enforced by a

domestic judge, not by an international judge. The domestic judge which acts, then

steps in on behalf of the other State whose interests have been harmed.

Down deep, both categories of ICL correspond to different values. Relatively

speaking, international crimes sensu strictu embody more important values than do

the ‘treaty’ crimes of the transnational criminal legal nature. The international crime

of genocide83 is indeed more serious, again relatively speaking, than an attack

against a peacekeeper.84 Both are criminalizations that have originated in

international criminal law, but both diverge in terms of the values they seek to protect

and, subsequently, in the way through which their criminalization becomes part of a

criminal judge’s toolbox.

There is, on the issue of values that are sought to be protected by the incriminations,

an unresolved debate about the place and role of the separate crime of « theft of

nuclear material » that has been in existence since the 1980 Convention on the

Physical Protection of Nuclear Material.85

82 Neil Boilster, ‘Transnational Criminal Law’, 14 Eur. J. Int’l L. 953 (2003) 83 Rome Statute of the International Criminal Court, 17 July 1998, U.N. Doc. A/CONF.183/9, Article 6, 37 Int’l Legal Materials 1002, 1004 (1998). 84 Convention on the Safety of United Nations and Associated Personnel, G.A. Res. 49/59, Article 9, 9 December 1994. 85 International Convention on the Physical Protection of Nuclear Material, opened for signature March 3, 1980, 18 Int’l Legal Materials 1419 (1979), entereed into force March 3, 1980.

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IV.b « Theft of Nuclear Material » as a special category : multi-faceted values and an elevated ranking among international crimes ? The crime of « theft or robbery of nuclear material », as provided for under Art. 7 (2)

of the Convention on the Physical Protection of Nuclear Material, retains a special

place within ICL. Among all the incriminations that bear potential relevance for the

nuclear issue without being specifically connected to terrorism, this crime is

considered to be of a more important nature. Whether or not the theft has been

committed by an insider from within a nuclear facility or not, is not relevant from the

international criminal law point of view, which does not distinguish in that regard.86

While the issue of the wide variety of definitions about the substances to which the

ICL-treaties apply, will be discussed below, suffice it here to point out that ‘nuclear

material’ concerns the hard end spectrum of the radioactive substances, i.e. those

that can be used for actual nuclear weapon.

The substances that are part of the nuclear black market, need to come from

somewhere, be it from a site for a nuclear power plant, or from another storage

facility. The one stealing it, stands at the beginning of the chain of illicit trafficking. If

the material does not get stolen in the first place, then no illicit trafficking can take

place. The question has been raised, therefore, whether an individual responsible for

theft of nuclear material, commits an act that is not merely of transnational interest,

but which goes against the interests of the international community as a whole.

In his seminal overview in which 28 categories of international crimes were identified

and ranked, Professor Bassiouni clearly identified « theft of nuclear materials »

amidst the actual « international crimes ». The latter concept was the first of three

concepts through which which he proposed to divide the proscriptions of ICL into

« international crimes », versus « international delicts » and, one step further down

the road, « international infractions ». According to BASSIOUNI, only « international

crimes » are truely international, and thus transcend those crimes that, though

regulated through ICL, are actually of a transnational nature or that were regulated

through treaties because it was considered the best option to enhance their

86 On insider theft, see generally Bruce Hoffman, Christina Meyer, Benjamin Schwarz and Jennifer Duncan, Insider Crime : The Threat to Nuclear Facilities and Programs, prepared for the US Department of Energy, February 1990, available at http://www.rand.org/pubs/reports/2007/R3782.pdf . See also Thomas Burch, Non-State Actors in the Nuclear Black Market : Proposing an International Legal Framework for Preventing Nuclear Expertise Proliferation & Nuclear Smuggling by Non-State Actors, II, B, 2 Santa Clara J. Int’l L 84 (2004).

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prevention and repression.87 Thus, « international crimes » are defined as « those

international criminal law normative proscriptions whose violation is likely to affect

the peace and security of humankind or is contrary to fundamental humanitarian

values, or which is the product of State-action or State-favoring policy ».88

On the value-inspired ranking of international crimes he proposed, which has been

drafted in terms of the extent to which the crime in question is considered harmful to

peace and security, « theft of nuclear materials » is placed sixth, after aggression ;

genocide ; crimes against humanity ; war crimes and unlawful possession or use of

weapons, with the explanation that « theft of nuclear materials follows unlawful

possession or use or emplacement of weapons insofar as it is designed to protect

against the unlawful use of nuclear materials obtained by theft, which goes beyond

the specifics of similar weapons control norms ».89 Given the fact that only the

Convention codifies the crime of « theft of nuclear material » it is concluded that

« this category needs further legal development in connection with the penal

elements necessary to enforce it ».90

In terms of the values that are sought to be protected by the separate incrimination

of « theft of nuclear material », the analysis is all but straightforward, as various

categories of such values have been retained by BASSIOUNI in his overview. In

general, this incrimination corresponds to human rights considerations of a protective

nature. There are two such categories under this heading : protecting human rights

regarding life and physical safety on the one hand, and protecting human rights that

affect social, cultural and economic interests, on the other hand. In the overview of

about twenty-five proscriptions that have been agreed upon by States in treaties, the

crime of « theft of nuclear material» is the only one which falls under both headings,

all the other ones only belonging to one category.

The argument goes on, however, leading to this crime being of a multi-faceted

nature. In addition to the double classification of being both designed to protect life

87 M. Cherif Bassiouni, INTRODUCTION TO INTERNATIONAL CRIMINAL LAW, 119 – 120, Transnational Publishers, 2003. 88 M. Cherif Bassiouni, INTRODUCTION TO INTERNATIONAL CRIMINAL LAW, 121, Transnational Publishers, 2003. The definition provided for « international delicts » is « those international criminal law normative proscriptions that affect an international protected interest, and whose commission involves more than one State or harms victims from more than one State ». The category « international infractions » is defined in the negative, as a residual category. 89 M. Cherif Bassiouni, INTRODUCTION TO INTERNATIONAL CRIMINAL LAW, 125 – 126, Transnational Publishers, 2003. 90 M. Cherif Bassiouni, INTRODUCTION TO INTERNATIONAL CRIMINAL LAW, 144, Transnational Publishers, 2003.

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and physical safety on the one hand, and to protect social, cultural and economic

interests on the other hand, BASSIOUNI argues that « theft of nuclear material »

belongs to three different categories of efforts that can be identified as underlying

ICL. First, like e.g. war crimes and unlawful possession or use of weapons, it

belongs to those incriminations that have been adopted adopted as part of the

‘protection of the peace’-efforts, given the potential that carries « theft of nuclear

material » to be a ‘threat to the peace’. Second, it belongs to the category of

offences that have been grouped under the heading ‘protection against terror-

violence’. Finally, it is also related to the category of ‘protection of the environment’.

The first of these two categories both belong to broader considerations of seeking to

protect human life and personal safety, while the latter deals with social, cultural and

economic interests.91

It is revealing to note that, before the early ‘90s confronted the world with the danger

of illicit trafficking from what were mostly believed to be Russian materials, « theft of

nuclear material » was not considered – including by Bassiouni - to be of such an

important and elevated nature as to warrant inclusion amidst those international

crimes which deserve greatest attention.92

In case it is correct that theft of nuclear material qualifies as a genuine international

crime, then we are confronted with a disconnect, a mismatch between such

qualification as opposed to its current treatment, which has all features of an ordinary

treaty-crime. Currently indeed, only domestic courts can convict someone for theft of

nuclear material, despite the fact that a value-inspired enquiry possibly leads to the

conclusion that the acts committed went against the interests of the entire

international community. Due to the Convention’s scope of application, dealt with

below, only material that was used for peaceful purposes and which gets stolen, is

subject to criminal sanctions pursuant to the convention. Of course, material used in

military installations will be subject to a wide variety of domestic statutes, each of

which remains outside ICL’s reach.

91 M. Cherif Bassiouni, INTERNATIONAL CRIMINAL LAW, 46 & 56-58, Vol. I, Crimes, Transnational Publishers, 1999. 92 Barry Kellman and David S. Gualtieri, Barricading the Nuclear Window : A Legal Regima to Curtail Nuclear Smuggling, 1996 U. Ill. L. Rev. 667, 716 - 717 (1996), as to whether what the authors refer to as ‘nuclear smuggling’, has an international or only a transnational element, arguing that « the theft of nuclear material imperils world peace and security (...) even if the theft and the subsequent movement of the material is confined to a single State », with FN 204 : « It has been suggested that the theft of nuclear materials is neither a direct nor an indirect threat threat to world peace and security, nor does it ‘shock the conscience’ of humanity [referring to Bassiouni]. In a discussion with the authors, Professor Bassiouni revised this assertion. He now believes that given the situation following the Soviet Union’s break-up, the theft of nuclear materials threatens international peace and security ».

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IV.c The International Criminal Court and its jurisdiction over some ‘sensu strictu’ international crimes

General Features and Jurisdictional Limits Could any of the acts that fall under the policy understanding of ‘illicit nuclear

trafficking’ be qualified as one of the three core crimes over which the International

Criminal Court has jurisdiction ? In other words : could the International Criminal

Court ever be thought of as a likely forum where an individual involved in an act of

‘illicit nuclear trafficking’, could be prosecuted and, in that case given the Court’s

system of complementary jurisdiction, could domestic courts be called upon to

exercise a role based upon an exercise of extraterritorial jurisdiction which is often

allowed for these crimes ? It is argued that the answer to both questions, clearly is in

the negative and that, furthermore, an attempt to argue the contrary would do a

disservice to the legitimacy of the currently existing definitions and institutions.

On July 1st, 2002, the Rome Statute of the International Criminal Court93

hereinafter : « ICC ») entered into force, creating the first ever permanent court of an

international nature. Empowered to exercise its jurisdiction (Art. 1) over « persons for

the most serious crimes of international concern », its jurisdiction is complementary

to that of States. Only if the latter are (Art. 17 (1) (a)) « unable or unwilling genuinely

to carry out the investigation or prosecution », can thereby arise a situation in which

the ICC could hear a given case.

Currently, provided that all other conditions for exercising its jurisdiction are fulfilled,

the ICC’s jurisdiction ratione materiae is limited to three international crimes :

genocide (Art. 6) ; crimes against humanity (Art.7) and war crimes (Art.8).

Theoretically, aggression is also part of the Court’s jurisdiction, but the latter remains

bracketed (Art. 5 (2)) as long as no definition has been adopted to define when an

individual can be held criminally liable for the crime of aggression, which will at the

earliest be the case at the 2009 Review Conference.

93 Rome Statute of the International Criminal Court, July 17, 1998, UN Doc. A/CONF.183/9, 137 I.L.M. 1998, entered into force July 1, 2002, available at www.un.org/icc For a basic introduction, see William A. Schabas, AN INTRODUCTION TO THE INTERNATIONAL CRIMINAL COURT, Cambridge University Press, 2001. For an in-depth treatment, see Antonio Cassess, THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT : A COMMENTARY, Oxford University Press, 2002 (3 volumes).

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This list of three crimes that have eventually been agreed upon is much shorter than

what some States would have wanted, and falls definitively short of the high

expectations that had been set by the NGO community in the lead up to the eventual

agreement. The issue of the specific crimes over which jurisdiction has been granted

to the ICC, and their substantive formulation, turned out to be a procedure of a highly

political nature. The issue of ‘nuclear weapons’ (which will be dealt with below, under

« The ICC and the Nuclear Field ? ») figures amongst one of the primary examples

which demonstrate that the negotiations that led to the Rome Statute were of a

highly political nature, thus meaning that the Statute does not necessarily coincide

with what the law should logically, let alone desirably, look like.

Thus, despite some proposals or attempts to the contrary, the ICC has no jurisdiction

over terrorism (!)94, transnational organized crime, drug trafficking, or over an act

constituting the deposit of nuclear waste in another State.95 These are but examples

of a larger trend that the negotiating parties wished to reserve the ICC’s jurisdiction

to offences which are of an international criminal nature sensu strictu and that the

States did not wish to establish a Court with jurisdiction over transnational offences :

enforcement of the legal provisions in this area, thus remains exclusively in the

hands of individual States.96 In addition to the argument that a widening of the

Court’s jurisdiction over such transnational offences would logistically overburden a

Court with limited means and that States wanted to maintain as a court of last resort,

there was a general sense that one wished to exclude jurisdiction over treaty crimes.

While the argument has been made that it would be possible to construe trafficking

in human persons as some sort of a crime against humanity97, and while normative

calls have been voiced that attention should be focused on holding arms brokers

accountable, at the level of the ICC, for their involvement in conventional arms

94 On the failure to include ‘terrorism’ within the list of crimes over which the ICC would be able to exercise its jurisdiction , see Pierre Klein, LE DROIT INTERNATIONAL A L’EPREUVE DU TERRORISME, Recueil des Cours de l’Académie de la Haye, 2005, pages 300 – 305. 95 Madagascar had initially proposed that the ICC would have jurisdiction over such ‘deposit of nuclear waste in other States’ as a crime within the ICC’s jurisdiction. This proposal never received any further consideration by the negotiation parties. See Kriangsak Kittichaisaree, INTERNATIONAL CRIMINAL LAW, 229, Oxford University Press, 2001. 96 Andreas Schloenhardt, Transnational Organized Crime and the International Criminal Court : Developments and Debates, 24 U. Queensland L.J. 93, 94 (2005). 97 Tom Obokata, Trafficking of Human Beings as a Crime against Humanity : Some Implications for the International Legal System, 54 Int’l & Comp. L.Q. 445. See also Andreas Schloenhardt, Transnational Organized Crime and the International Criminal Court : Developments and Debates, 24 U. Queensland L.J. 93, 109 (2005) : « It may be possible to intepret crimes against humanity under the ICC Statute so as to encompas seirous cases of trafficking in persons conducted by criminal organisations. (...) under the current law (...) it is unlikely that trafficking in persons committed by criminal organisations will be brought to trial before the ICC ».

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brokering98, it remains very much an open question whether the Prosecutor will ever

resort99 to such qualification that goes beyond the explicitly agreed upon framework,

and whether trafficking in nuclear material could equally be construed in such a

sense. As will be indicated below, currently, nothing allows for retaining a positive

answer to that question.

Next to the issues about how to qualify a given set of circumstances from the legal

point of view and whether the three crimes over which jurisdiction has been

confirmed would have their boundaries overstretched if one would try to encompass

illicit nuclear trafficking within one of their definitions, comes the issue as to who

could be prosecuted at the ICC. The latter has been set up, in short, as a court of

last resort that should be dealing with the ‘big fish’ : not the ones implementing a

plan of atrocities, but the one providing leadership for it.

In a document of paramount importance, the Prosecuter of the ICC indicated by way

of policy guideline for his Office that « as a general rule, the Office of the Prosecutor

should focus its investigative and prosecutorial efforts and resources on those who

bear the greatest responsibility, such as the leaders of the State or organisation

allegedly responsible for those crimes » (underlining added).100 Needless to say :

individuals involved in acts of illicit nuclear trafficking, though their acts are most

definitively worthy of criminal sanctions, will hardly ever bear the greatest

responsibility in the face of the type of mass atrocity over which the Court has

jurisdiction. Though they most certainly contributed to such mass atrocity as

facilitators, they are not necessarily the ones bearing the greatest responsibility

when compared to an actual attack that would have been carried out with the

substances traded in.

Given the fact that the ICC has no jurisdiction whatsoever over ‘terrorism’101 or over

the specifc acts which are considered terrorist under the wide variety of ad hoc

98 Katharine Orlovsky, International Criminal Law : Towards New Solutions in the Fight against Illegal Arms Brokers, 29 Hastings Int’l & Comp. L.R. 343, 356 – 366 (2006), and correctly noting at 354 : « illicit arms trade per se is not an international crime according to either customary international law or international criminal law ». 99 Furthermore, if illicit nuclear trafficking were to be prosecuted at the ICC, a political issue is likely to arise in case the Prosecutor asks certain information to States as part of the provisions on the cooperation between the Court and its member States : such information is likely considered very sensitive. 100 International Criminal Court, Office of the Prosecutor, Paper on some Policy Issues before the Office of the Prosecutor, September 2003, at 2.1 Who Should Be Prosecuted ?, available at http://www.icc-cpi.int/library/organs/otp/030905_Policy_Paper.pdf 101 See generally Alex Schmid, Terrorism – The Definitional Problem, 36 Case W. Res. J. Int’l L. 375 (2004).

36

treaties that have been enacted over the years, it will equally be impossible to hold

individuals involved in illicit nuclear trafficking, through some of the figures of

accomplice liability that have been enacted in the Rome Statute : at the level of the

ICC, one cannot be an accomplice in a crime over which the Court has no

jurisdiction !

However, the question needs to be raised whether the ICC could have any role to

play, not because of a possible nexus with terrorism (which is all that it’s about at the

level of the treaty crimes !), but because of the radioactive / nuclear nature of the

materials involved.

The ICC and the Nuclear Field ?

Most of the debates that exist around the possible relationship between the ICC and

the nuclear field, are exclusively concerned with the actual use of nuclear weapons :

could an individual ordering such use, or who is involved in the actual use him- or

herself, be held liable for it by the Court ? 102 These debates are, by definition,

irrelevant when seeking to assess which legal framework applies to individuals that

trafficking in nuclear substances without using them. There is more, however as, in

general, the whole weapons issue has quite a problematic relationship with the

ICC,103 which is still a different debate from the question whether the weapon at hand

is (il)legal under international law.

Whereas Art. 8 of the Rome Statute on war crimes lists a number of prohibited

weapons the use of which, under certain qualifying conditions typical of the criminal

law context and in any event limited to a context of an international armed conflict,

could lead to criminal sanctions,104 nuclear weapons, in line with biological and

chemical weapons, as well as in line with any other category of weapon that has not

been explicitly provided for under the Rome Statute, such as e.g. depleted uranium

102 I agree with normative arguments that have been made that it may be possible to prosecute someone who used nuclear weapons by invoking crimes of innocently killing civilians, under the conditions of the Rome Statute, but this will then be a prosecution that is not relatedto the means that have been used, i.e. nuclear weapons or material. 103 See Lucy Martinez, Prosecuting Terrorists at the International Criminal Court : Possibilities and Problems, 34 Rutgers L.J. 1 (2002-2003). For an overview of the situation prior to the ICC, see Christopher Greenwood, Current Issues in the Law of Armed Conflict : Weapons, Targets and International Criminal Liability, 1 Sing. J. Int’l & Comp. L. 441 (1997). 104 See, for international armed conflicts, Art. 8 (xvii) , (xviii) and (xix), respectively dealing with « poison or poisoned weapons » ; « asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices » and « bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions ». None of these has been retained for non-international armed conflicts.

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weapons, are currently not among the list of weapons the use of which has been

rendered criminally sanctionable per se.105 Though the majority of delegations was in

favor of including a criminalisation of the use of nuclear weapons, the strong

opposition against such insertion, voiced by some powerful States that needed to be

kept on board for strategic reasons, eventually led to the situation whereby the Rome

Statute currently fails to criminalize nuclear weapons.106

Obviously, prosecuting those involved in illicit nuclear trafficking would therefore

presumably be impossible under a count of being a direct perpetrator : someone who

is smuggling, selling nuclear substances etc., has by presumption no intent

whatsoever to destroy a given group (as required for genocide), or does not commit

any of the acts of violence that could qualify as crimes against humanity. Nor has

trading in even those substances which qualify as egregious violations of

international humanitarian law, been directly criminalized under a separate count of

direct perpatratorship. All that can be thought of, concerns the issue of seeking to

hold those individuals liable under one of the figures on accomplice liability.107

In order to remedy this perceived weakness of the law, one distinguished author has

recently called upon the international community of States to incorporate « nuclear

transfer » as a new, and separate, example of crime against humanity over which

the ICC could exercise its jurisdiction : apart from the upgrading in terms of the label

that would thus be conferred upon the act, this would have the advantage that

domestic courts could exercise extraterritorial jurisdiction over such crime.108

Under the current system, of course, the latter has not yet been done. What has

been done however in the lead up to the final text of the Rome Statute, and this by

way of compromise, was to insert a provision which renders it possible that, in the

future and by way of amendment, a new crime becomes inserted into the Rome

Statute, « provided that such weapons, projectiles and material and methods of

105Detailing the history of this exclusion, despite initial suggestions with various options to the contrary, and arguing that nuclear weapons should have been included, see Elaina I. Kalivretakis, Are Nuclear Weapons Above the Law ? A Look at the International Criminal Court and the Prohibited Weapons Category, 15 Emory Int’l L. Rev. 683 (2001). 106 Lyal S. Sunga, The Crimes Within the Jurisdiction of the International Criminal Court (Part II, Articles 5 – 10), 6 Eur. J. Crime Crim. L. & Crim. Just. 61, 80 (1998). 107 See Andrea Reggio, Aiding and Abetting in International Criminal Law : The Responsibility of Corporate Agents and Businessmen For « Trading with the Enemy » of Mankind, 5 International Criminal Law Review, 623 (2005) 108 Anne-Marie Slaughter and Thomas Wright, Punishment to Fit the Nuclear Crime, Washington Post, 2 March 2007, page A13

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warfare are the subject of a comprehensive prohibition ».109 Irrespective of the

innumerable uncertainties surrounding this provision, both political considerations

and its very high threshold lead to a situation whereby it seems very unlikely that

nuclear weapons will be criminalized as such in the foreseeable future. In any event,

this provision only relates to ‘war crimes’, not to genocide and crimes against

humanity : a war crime can only be committed in case international humanitarian law

applies, and the possibility to subject the use of other weapons to a charge of ‘war

crime’, has so far only been provided for in the case of an international armed

conflict. A fortiori, and given the absence of terrorism having been criminalized under

the Rome Statute, anything remaining below the actual threshold of nuclear

weapons, definitively falls outside the realm of the Court in terms of direct liability for

those who engage in acts of illicit trafficking.

None of the forms of accomplice liability that exist under the Rome Statute, for which

someone can be held liable for a crime committed by someone else, can be resorted

to either : all of them (Art. 25 (3), b to d) require indeed that the accomplice, aidor

and abettor or whatever terminology that is used to apprehend someone that has not

himself commit the crime (see VI.B on Modes of Participation), presupose that a

crime has been committed over which the Court has jurisdiction. As nuclear

weapons have so far been excluded from the ICC’s framework, as has terrorism, a

fortiori this means that participatory liability will be impossible if it seeks to impose

indirect criminal liability for having contributed to an act in which nuclear weapons

were used. As indicated above, one cannot sufficiently stress that prosecution may

very well be possible by using another label (see equally the conclusion about the

importance of using correct labels when resorting to criminal prosecution), both at

the level of the ICC and at the level of domestic tribunals. However, the fact that

nuclear weapons or components are involved, remains in and of itself without

consequences at the level of the ICC.

Let’s pause a moment at this stage in order to summarize where things are standing.

It cannot be said, in short, that the ICC will be a likely forum where criminal

enforcement against illicit trafficking shall occur. Criminal law sanctions vis-à-vis

individuals that are involved in illicit nuclear trafficking can only be imposed by

domestic courts. Unless a domestic sovereign has taken an initiative to criminalize

some aspects of the nuclear field qua one of the three crimes over which the ICC

has jurisdiction, it is far from guaranteed that the prosecution could easily rest its 109 Art. 8 (b)(xx). Discussion this provision, see Robert Cryer, Hague Law Comes Home : Prosecuting Weapons Offences at the International Criminal Court, 2003 Acta Juridica 238, 250-251 (2003).

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case on of these three crimes. The latter cannot be excluded, of course : a

prosecutor may always decide to try to have a case litigated under this heading.

Whereas the facts of the case will obviously be paramount in order to assess such

effort’s feasability, it will need to be judicially tested whether some aspects of illicit

trafficking could be qualified as genocide ; crimes against humanity or war crimes.

Absent a clear signal from States that they agree with such qualification, I argue that

we would be doing a disservice to the system’s legitimacy to do so in the meantime:

none of the current definitions of the three crimes, allows for such interpretation. It

may serve short-term tactical interests to try to have someone prosecuted for one of

these three crimes by overstretching their conventional understanding. Strategically

and in the long run, however, the system of international criminal justice loses its

powerfulness and, it can be feared, support of States if the institutions start acting on

their own.

For the moment, therefore, few sound arguments can be retained that illicit nuclear

trafficking is considered, de lege lata, as an international crime sensu strictu. Most

indicators point towards the direction that it remains a classic treaty crime over which

only domestic tribunals could exercise their jurisdiction. As will be further discussed

below (see ‘VI. « Theft of Nuclear Material » as a special category: multi-faceted

values and an elevated ranking among international crimes’) the crime of « theft of

nuclear material » possibly defies this logic, based upon the very treatment given to

it by States. This crime, as perceived by States which agreed upon a separate

incrimination of it, corresponds to values that would justify its inclusion within the

category of international crimes sensu strictu. If this is indeed the case, this would

mean that there is a mismatch between the crime’s treatment in conventional law, as

opposed to where the crime belongs in terms of the values it seeks to protect.

Other than this specific issue, which only plays at the issue of rhetoric as theft of

nuclear material can in any event only be prosecuted at the level of a national court :

it are the latter that will need to carry the weight of ensuring the extent to which illicit

nuclear traffickers can operate within a realm of normative impunity.

Therefore, first of all (Part V), attention will be devoted to the influence exercised by

the Security Council, which can impose upon its Member States to adopt legislation

of a criminal nature at the domestic level. When the Security Council’s decision has

been adopted through a Resolution under Chapter VII of the UN Charter, the Council

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jumps the queue vis-à-vis ICL’s classic features, in that all States are obliged to

enact such criminal legislation, whether they want it or not.

Secondly (Part VI), a comprehensive look will be had at the relevant state-to-state

treaties with a criminal law dimension. Some of their treaty crimes do allow for

criminal prosecutions against individuals involved in the nuclear black market,

though they tackle the issue from a different angle than by qualifying it as one of the

three crimes over which the ICC has jurisdiction.

Under both approaches, and despite the fact that the Security Council may have

been involved, fact of the matter remains that illicit nuclear trafficking is not

considered, by ICL, as a crime of genuine international concern. At most, but from a

different and quite partial angle, some of the acts that are understood to be part of

the larger phenomenon, are considered crimes of a transnational nature.

V. THE UN SECURITY COUNCIL MOBILISES CRIMINAL LAW AGAINST SOME ASPECTS OF ILLICIT NUCLEAR TRAFFICKING

The Security Council has, so far, taken two different types of decisions that have, at

least indirectly, an impact upon the topic of enquiry. First, there are some sanction

regimes that seek to have States introduce restrictive measures against the trade

and flow in nuclear components. Secondly, a unique example so far, is the far-

reaching Resolution 1540.

V.a. Sanction regimes Security Council sanction regimes have a possible criminal law dimension with

possible relevance for regulating illicit nuclear trafficking coming from or going

towards a particular region. By enacting a Resolution which contains sanctions, the

Council can impose a requirement upon all States that they need to prohibit, vis-à-vis

their nationals or for anyone operating from within their territory, to sell, supply,

transfer etc. arms, commodities or, relevant here, materials from the nuclear field.

The precise formulations, and requirements for States, will always depend upon the

specifics of the case and of a given Resolution, so no general assessment can be

made.

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Thus, for example, in Resolution 1737 (2006) concerning the situation in Iran, the

Security Council, acting under Article 41 of Chapter VII of the United Nations

Charter, requested all States to take the necessary measures to prevent, in a wide

variety of circumstances, the supply, sale or transfer for a number of enumerated

« items, materials, goods and technology which could contribute to Iran’s

enrichment-related, reprocessing or heavy water-related activities, or to the

development of nuclear weapon delivery system ».110 Illicit trafficking in nuclear

materials could thus be one of the possible ways in which the sanction regime gets

circumvented : can criminal liability then be imposed on such a sanctions buster ?

If a particular Resolution has any relevance for the nuclear/radiological field, as in

the case of the Resolution taken against Iran, such Resolution will mirror the forms of

an arms embargo. As the quote above indicates, such arms embargos are often

broadly formulated, aiming to catch a wide number of economic phenomena. The

jurisdictional and territorial scope of application of these penalties, will usually have

been spelled out by the Resolution While the issue of these sanctions’ domestic

implementation will often require other acts than mere legislative implementation, the

latter obviously occupies a primary place if the Council has called for them, which is

not necessarily the case : it will be up to each Resolution to specify what exactly will

be required in terms of domestic enforcement measures, and whether « penalties »

are called for.111 If this is the case, it will usually be left up to the particularities of

each domestic legal system to decide whether or not such penalties will be of a

criminal or of an administrative nature : providing for genuine implementation of a

Resolution may thus not necessarily require criminal sanctions. Inherently, this

system entails wide variations between the scope of penalties in various States..

The issue of UN Security Council sanctions, and the difficulties related to their

implementation by UN member States, go far beyond the present article. Suffice it to

highlight that none of these sanctions resolutions execute themselves : it is up to

member States to take the necessary implementing action, which needs to take

forms as specified by the Resolution in question. This requirement of domestic

implementation has proven to be the Achilles heel of the entire exercise : not all

States take such necessary action and even if they do so, this does not necessarily 110 UN S.C. Res. 1737, esp. §3 and § 4, U.N. Doc. S/RES/1737 (December 27, 2006). 111 See e.g. the overview provided in Vera Gowlland-Debbas (ed.), National Implementation of United Nations Sanctions : A Comparative Study, 53-54, Martinus Nijhoff Publishers (2004) at, providing inter alia the examples of a number of Resolutions which required the imposition of penal sanctions under domestic law for persons who evade the sanctions : Resolutions 333 (Southern Rhodesia) ; 820 (Federal Republic of Yugoslavia) ; 841 (Haiti) ; 864 and 1295 (UNITA) and Resolutions 1267 plus 1333 (Taliban).

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guarantee that the law enforcement agencies monitor it at the domestic level.112 As

with the Resolutions in general, this systemic feature particularly holds true for a

possible requirement to introduce criminal sanctions that can be imposed upon those

who violate the Resolution’s normative framework : it is first of all up to the States’

legislators to enact criminal sanctions and, subsequently, nothing guarantees in and

of itself that laws which exist in the books, will be actively monitored and enforced by

law enforcement agencies such as immigration and custom officers.

State legislation on this issue defies any uniform categorization. Some States have

provided for a uniform system to implement Resolutions, with criminal penalties

automatically provided for in case someone violates the provisions of the

implementing legislation.113 Though it is thus theoretically possible that a violation of

a UN Security Council sanction regime indirectly carries criminal sanctions for

individuals and, if the domestic criminal system in place allows for it, for corporations,

such a violation results in the commission of a domestic crime, not an international

crime, despite the genuinely international origins of the incrimination.114 Even if the

case is brought before a court, which is far from guaranteed, the prosecution will

need to rest its case on the domestic statute which implements the Security Council

Resolution, which will always have been taken vis-à-vis a particular State or group.

To that extent, and with all these caveats in mind, it is perfectly possible that

individuals involved in illicit nuclear trafficking and which violate the said legislation,

have to face criminal sanctions in a domestic courts.

The Security Council’s impact on the criminal law framework which applies to illicit

nuclear trafficking, however, has been much more important than the issue of

sanctions regimes would suggest : Resolution 1540 (2004) is, to say the least, quite

a spectacular step that has been taken by the Security Council in this area.

112 See, for a discussion of some of the factors that facilitate sanctions evasion, Vera Gowlland-Debbas (ed.), National Implementation of United Nations Sanctions : A Comparative Study, 650-652, Martinus Nijhoff Publishers (2004). 113 Vera Gowlland-Debbas (ed.), National Implementation of United Nations Sanctions : A Comparative Study, 53-54, Martinus Nijhoff Publishers (2004). 114 William A. Schabas, Enforcing International Humanitarian Law : Catching the Accomplices, 439, 449-450, 83 International Review of the Red Cross, No. 842 (2001). See also Andrea Reggio, Aiding and Abetting in International Criminal Law : The Responsibility of Corporate Agents and Businessmen For « Trading with the Enemy » of Mankind, 5 International Criminal Law Review, 623, 660 (2005) : « these Resolutions do not declare that a violation of the embargo is considered an international criminal offence ».

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V.b. Resolution 1540 : A new top for the international criminal law pyramid that does not fit its previously constructed shape A « threat to international peace and security ». Those were the words used by the

Security Council in relation to « the threat of illicit trafficking in nuclear (...) weapons

and their means of delivery and related materials ».115 (underlining added) Firmly

entrenched against the background of the Council’s anti-terrorism efforts, and

building upon earlier statements about the nexus between weapons of mass

destruction and terrorism116, this Resolution has been adopted under Chapter VII of

the Charter of the United Nations and contains a number of obligations that are

binding for the entire membership of the United Nations.

As equally indicated above, from the Council’s perspective, the threat is not just or

exclusively nuclear weapons : the Resolution equally deals with biological and

chemical weapons, all three of which combined make up for the ‘weapons of mass

destruction’ category. Throughout, this Resolution applies to ‘nuclear, chemical and

biological weapons and its means of delivery’ . No mention of ‘nuclear material’ or

‘radioactive sources’117 is ever made. This political fact of life, namely that it is

nuclear weapons which raise worries, raises questions when seeking to shift from

political rhetorics to criminal liability : does it make sense to sort out a separate

space for the nuclear issue ?

Resolution 1540 leaves undefined the words ‘illicit trafficking’ : used as a concept in

both the Preamble and the operative part, we do not know which understanding the

Security Council has of the phenomenon.

What the Resolution lacks in terms of conceptual clarity, is largely compensated for

in terms of operational strength : States do need to do quite a lot of things in order to

fulfill the obligations flowing from this Resolution ! Some of these obligations are

relevant from the criminal law point of view, others not.

115 UN SC, S/RES/1540 (2004), 28 April 2004, Preamble, 9th para, in 43 Int’l Legal Materials 1237 (2004), which mentioned ‘chemical or biological weapons’ on the same status as nuclear weapons. 116 UN SC, S/res/1456 (2003), 20 January, 2003, where the Security Council, as part of its ‘declaraton on the issue of combatting terrorism’, reaffirm[ed] that « there is a serious and growing danger of terrorist access to and use of nuclear, chemical and biological and other potentially deadly weapons, and therefore a need to strengthen controls on these materials ». 117 This with the exception of a mention in the preamble that most States have made non-binding commitments that are aimed at prevention the proliferation of weapons of mass destruction, notably those recommended in the IAEA Code of the Conduct on the Safety and Security of Radioactive Sources.

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Thus, § 3 (c) of the operative Part requires States « to develop and maintain

appropriate effective border controls and law enforcement to detect, deter, prevent

and combat (...) illicit trafficking in such items ». The term « combat » does not seem

to be carrying any dimension that would include a requirement to adopt criminal

legislation, as it refers more to the fact of taking actions, setting up programs etc.

that can combat this phenomenon outside the courtroom.

Furthermore, equally in the Resolution’s operative part, § 10 indicates that the

Security Council « calls upon all States (...) to take cooperative action to prevent illicit

trafficking in nuclear (...) weapons, their means of delivery, and related materials ».

The very wording ‘calls upon’ demonstrates that this is not a binding obligation under

the Resolution. States may take such cooperative action, though are not strictly

obliged to. The crucial issue is this : despite these three mentions of the concept

‘illicit trafficking’ in the Resolution, none of them has any relevance from the point of

view of ICL.

Next to the Convention’s first obligation, imposing all States to refrain from

supporting non-State actors in this field118, come two obligations that are relevant

from the point of view of criminal sanctions.

(a) First, §2 of the Resolution contains an obligation for all States « in

accordance with their national procedures, (to) adopt and enforce appropriate

effective laws which prohibit any non-State actor to manufacture, acquire, possess,

develop, transfer, transport, transfer or use nuclear (...) weapons and their means of

delivery, in particular for terrorist purposes, as well as attempts to engage in any of

the foregoing activities, participate in them as accomplice, assist or finance them ».

(underlining added)

Irrespective of all the controversies that this Resolution has evoked as to whether the

Council was authorized to oblige all Member States to adopt criminal legislaton119,

fact is that it was the Council’s intention that these implementing laws should contain

118 UN SC, S/Res/1540 (2004), 28 April 2004, §1 : « Decides that all States shall refrain from providing any form of support to non-State actors that attempt to develop, acquire, manufacture, possess, transport, transfer or use nuclear, chemical or biological weapons and their means of delivery ». 119 See Stefan Talmon, The Security Council as World Legislature, 99 Am. J. Int’l L. 175 (2005) and Eric Rosand, The Security Council as ‘Global Legislator’ : Ultra vires or ultra innovative ?, 28 Fordham J. Int’l L. 542 (2005).

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criminal penalties.120 It is not alltogether clear to which items precisely that these

penalties need to be made applicable : a great space of action is left to the States.

(b) The second reference that is directly relevant from the criminal law point of

view, is situated in § 3(d), requiring all States to « establish appropriate criminal or

civil penalties » for the violations of export control laws, the adoption of which is

mandated by the same paragraph. With the exception of those instances of illicit

trafficking that are entirely situated within a single jurisdiction, any transborder

instance of such trafficking should be sanctionable through the angle of a violation of

export control laws.

→ ‘Illicit trafficking’ is not used amidst the acts that are to be criminalized and,

contrary to the broad-sweeping Statement in the Preamble, ‘related materials’121 are

not covered either by the Council’s obligation to provide for criminal sanctions.

Instead of using the words ‘illicit trafficking’, the Council inserted a list of eight

different acts in §2 that need to be criminalized when committed by non-State actors,

The list of types of conduct that are to be criminalized, thus goes much beyond use,

and includes quite a number of the activities that fall under the policy understanding

of ‘illicit trafficking’.

The crucial point is this : the Council has taken this Resolution as part of its anti-

terrorist measures, and has clearly added in §2 that the criminalization which it

requires, relates to acts of illicit nuclear trafficking that are carried out « in particular

for terrrorist purposes ». Thus, the nexus between nuclear weapons and terrorism

has now been made an inherent part of this framework whereby the Security Council

mobilises the criminal justice framework of its member States to address a particular

threat because of the link with terrorism. In and of itself, illicit trafficking that is

unrelated to acts of (nuclear or radiological) terrorism, is not considered worthy of

criminal sanctions.

At the end of the day, it is up to each legislator to translate this Resolution into his

domestic criminal legal framework. Based on the publicly available information,

120 Bruno Demeyere, The Proliferation of International Nuclear Law’s Actors : Resolution 1540 and the Security Council’s Fight against Weapons of Mass Destruction Falling into Terrorists’ Hands, 75 Nuclear Law Bulletin, available at page 8 : http://www.law.kuleuven.ac.be/iir/nl/wp/WP/WP82e.pdf 121[The concept ‘related materials’ has been defined in a footnote to the Resolution and ‘for the purpose of this Resolution only’ as follows : « materials, equipment and technology covered by relevant multilateral treaties and arrangements, or included on national control lists, which could be used for the design, development, production or use of nuclear, chemical and biological weapons and their means of delivery. »

46

about 124 States have transmitted the precise references of their domestic

legislation to the Committee estabished to oversee the Resolution. Especially the

requirement to enact criminal sanctions for the violations of export control laws, will

be an angle through which many instances of illicit trafficking could be made subject

to criminal sanctions, provided the court has jurisdiction of course. These criminal

sanctions, however, need to be thought of as having been rendered mandatory by

the Security Council’s intervention, and are not classic ICL. Rather, it is domestic law

that has been required from an international actor, which took a shortcut by imposing

its power to the fullest extent. Irrespective of whether or not this approach is a good

one for the system’s legitimacy122, fact is that all States are now required to adopt

criminal legislation.

The conceptual shift that has occurred in this debate, is important : what started off

as an issue of a transnational criminal nature which potentially affects a wide number

of States, became reconceptualized into a « threat to international peace and

security », the threshold condition for any Security Council action mandated under

Chapter VII. Given the potentially catastrophic consequences of nuclear materials in

the wrong hands, a case can be made that illicit nuclear trafficking has such direct

nexus with the agenda on international peace and security, much more easily so

than e.g. drug trafficking : whether or not illicit nuclear trafficking always constitutes

an issue of transnational organized crime and while not all of the latter’s modes of

appearance may soundly be qualified as being a threat to international peace and

security, illicit nuclear trafficking threatens international peace and security,123 though

the debate remains open whether this equally means that the UN Charter allows for

such an understanding. By having enlarged its understanding of what are « threats

to the peace »124, the Council has qualified « proliferation », both by State and non-

State actors, into terminology which it could use for activating its own powers.125

122Cf. Jose Alvarez, Between Law and Power, 99 Am. J. Int’l L. 926, 927 (2005) : « Worried that States are simply too wrapped up in tiresome arguments about ‘double standards’ and ‘sovereignty’ to negotiate arms control conventions quickly enough or that the existing State-centric tools do not reach dangerous non-State actors with access to devastatingly powerful weapons that ought to be limited to more responsible members of the international community ? There is a solution : simply legislate nonproliferation, for States and nonState actors alike, while delegating compliance efforts to a Council sub-body : see Security Council Resolution 1540 ». 123 Arguing against the approach to translate issues of transnational organized crime into an issue of international peace and security, see Oded Löwenheim, Transnational criminal organizations and security : the case against inflating the threat, 57 Int’l L.J 513, 519 (2001-2002). 124 This widening of the understanding given to the terms « threat to the peace », is far from uniquely linked to the issue of proliferation of weapons of mass destruction. See Karel Wellens, The UN Security Council and New Threats to the Peace : Back to the Future, 8 J. Conflict & Security L. 15, 28 – 47 (2003). 125 See Daniel Pickard, When Does Crime Become a Threat to International Peace and Security ?, 12 Fla. J. Int’l L. 1, (1998-2000).

47

Through this, more and more, the Security Council has integrated arms control

issues into its understanding of the agenda on international peace and security.126 As

far as non-proliferation by non-State actors is concerned, the Council has added a

layer of ICL on top of this framework, while slightly conditioning the latter upon a

context of terrorism.

In turn, the Council translated its desire into a norm : a phenomenon that was

considered worthy of criminal sanctions, but which did not yet necessarily carry such

sanctions in the criminal codes of the UN Member States, has now been mandatorily

made sanctionable. Neither treaty-law nor originating within sovereign consent to a

specific treaty, the Security Council has cast a new net across the existing ICL-

treaties framework, which defies any categorization and remains sui generis. On top

of the conventional ICL-treaties, which will be dealt with below, hovers now a new

body of authority, very ad hoc and, as no Security Council Resolution is auto-

executable, the real contours of which can only be assessed by looking at the

precise conditions under which the legislators have incorporated the Resolution’s

provisions. Time and again, no analysis of this issue can escape the fact that the

entire ICL-architecture that is possibly relevant, will only come alive if and to the

extent that States want so. This same feature holds true for the dispersedly situated,

but partially relevant, ICL-treaties, ratification of which is nowhere compulsory. It is to

these treaties that the next part turns its attention.

VI. TREATY CRIMES AND THE ELUSIVE CRIMINAL LAW DIMENSION OF ILLICIT NUCLEAR TRAFFICKING Security Council Resolution 1540 has definitively provided a conceptual framework

with mandatory force through which quite a lot of acts of illicit trafficking, will

potentially be subject to criminal sanctions in front of a domestic court. The latter

could equally be called upon to play a role by relying upon some of the classic ICL-

treaties, which will be dealt with in this part.

In a first section (« A. Systemic feature »), a general overview will be provided of

what follows, in order to contextualize the rather technical two ensuing parts. Part B

will examine which substances and materials fall under each of the potentially

relevant treaties’ scope of application, as this is the very first question that needs to

126 Anne-Sophihe Millet-Devalle, Non-Prolifération Nucléaire : le régime de non-proliferation, mouvements d’ensemble et mouvements partiels, 111 Rev. Gén. Droit Int. Pub. 435, 443 – 446 (2007).

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be looked at : if a given substance that was involved in an act of illicit trafficking, is

not covered by that scope of application, the treaty in question simply does not

apply. Subsequently, under the assumption that a given treaty applies, Part C will

examine under which conditions a particul act has been rendered a criminal one.

Especially, as will be pointed out, it turns out that quite a number of the treaties only

criminalize acts of illicit nuclear trafficking when they are linked to acts of terrorism.

Given the absence of a direct criminalization of illicit nuclear trafficking, Part D, on

Modes of Participation, will assess under which conditions it is possible to hold the

individuals involved liable because of their complicity in the acts committed by

others.

VI.a. Systemic Features As indicated at several instances, ICL currently fails to criminalize illicit nuclear

trafficking as such. The wide variety of activities that are all captured under the policy

concept of illicit trafficking, are not all considered worthy of sanctions under ICL.

So far, the international community has not yet given separate attention to provide

for an explicit, and separate, incrimination of illicit nuclear trafficking. It is only

tangentially that the issue has been touched upon in ICL, leading to a very dispersed

legal landschape. There is no unified approach, as one needs to look into a variety of

dispersed and uncoordinated treaties, which provide for a criminalisation of particular

aspects of the illicit trafficking chain and which have themselves been separately

agreed upon in reaction to specific threats. Every single time, the treaties require

States to make particular conduct a crime under their domestic legal system, and to

ensure that its courts are empowered to exercise their jurisdiction over particular

events. Therefore, not all instances that are referred to as ‘illicit trafficking’ have

been captured by ICL. Mos crucially, those instances that have been captured, have

often only been done so because of their nexus with terrorism, whereby such nexus

is an essential component of the crime’s definition : absence the link with terrorism,

quite a number of the texts do not allow for criminal sanction. It is, in short, only

because of the presumed teleological aim animating the illicit trafficker – the

possibility that the substances is eventually used in a terrorist attack – that the acts

of illicit trafficking are considered worthy of criminal sanctions.

These criminalizations, with their corresponding treaty-based agreements on

jurisdictional and procedural enforcement, indicate that illicit trafficking as such is not

considered by the international community as a core international crime sensu

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strictu : outside the reach of the International Criminal Court, it is up to domestic

courts to carry the burden of dealing with this transnational threat. This leads to a

system of indirect enforcement. Though such crimes have been conventionally

defined in treaties,the international community has not provided for a separate

institutional machinery that can deal with it.

Due to the fact that they have been conventionally defined in a treaty, the various

provisions that could be invoked in the fight against illicit nuclear trafficking still

belong to ICL, as opposed to purely national crimes, which have been criminalized

by a sovereign legislator without any origin thereof in a treaty. A crime such as

robbery, for example, has been criminalized throughout the world by sovereign

legislators, but has nowhere been enshrined in an international treaty. Therefore, it

remains a national crime, which in turn does not preclude that its enforcement relies

upon procedures for intra-State cooperation.127 Given the many treaties which

criminalize particular aspects of illicit trafficking, the latter definitively belongs to ICL.

Its enforcement, however, remains indirect, as it relies on prosecution before a

domestic court.

Therefore, however globalized the networks in illicitly trafficked nuclear materials

may be, and now matter how much the latter may have been facilitated by the same

forces of globalization, at the end of the day, sanctioning those involved remains a

local and parochial affair,128 as it relies entirely on a particular State’s criminal justice

system. The fact that enforcement remains, at the end of the end, a local affair which

takes place within the confines of a single State, does not mean that this occurs in a

vacuum : most ICL-treaties will indeed, as has been elaborated upon above, often

set the boundaries as to the conditions under which jurisdiction can be exercised and

will harmonize the understanding of what exactly constitutes the crime.

Which treaties are the ones that are potentially relevant on this issue ? In total, there

are five different treaties which each criminalize certain aspects that could be

relevant for criminalizing what is generally thought of as belonging to the realm of

illicit nuclear trafficking. Each of these treaties has its own scope of application, its

own materials to which it applies (section B), and its own understanding of which

127 Bassiouni refers to this as being «the international procedural aspects of national criminal law », see M. Cherif Bassiouni, The Sources and Content of International Criminal Law : A Theoretical Framework, in INTERNATIONAL CRIMINAL LAW, Volume I Crimes, 2nd edition, 8 (M. Cherif Bassiouni, ed., Transnational Publishers, 1999) 128 Cfr. Edgardo Rotman, The Globalization of Criminal Violence, 10 Cornell J.L. & Pub. Pol’y 1 (2000).

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conduct has exactly to be criminalized (section C) by the ratifying States under the

paradigm of indirect enforcement.

With one exception, the UN Convention on Transnational Organized Crime, all of the

treaties that will be discussed have an implicit or an explicit link with the issue of

terrorism. Chronologically, these are: (1) the 1980 Convention on the Physical

Protection of Nuclear Material (amended in 2005) ; (2) the 1988 International

Convention for the Suppression of Terrorist Bombings ; (3) the 2000 United Nations

Convention against Transnational Organized Crime and (4) the 2005 International

Convention for the Suppression of Acts of Nuclear Terrorism.

The treatment will be far from exhaustive and is not meant to provide a

comprehensive overview of the treaties in their substantive129 ICL-dimension.

Rather, the only ambition of what follows in sections B anc C will be to focus on

those parts of the texts that are relevant for the issue of illicit nuclear trafficking, and

will be confined to their actus reus and mens rea. Obviously, as elaborated upon

above (II b on ‘prevention versus criminalization’, last part of II b), the advantage of

such treaty approach resides in the harmonization it allows for, and in the often quite

detailed procedures that are agreed upon in order to facilitate intrastate cooperation

in criminal matters.

Throughout the analysis of all treaties, the assumption will be that the individual

involved in nuclear trafficking will not be the one that is actually carrying out a

terrorist attack and that this individual has, as such, no intention to commit a terrorist

attack : all (s)he is interested in, is the prospect of making money out of a transaction

involving nuclear materials. Which thresholds apply for holding such a merchant of

death130 responsible ?

After a discussion (‘VI. A : Contours and assessment of the relevant international

criminal law treaties’) of what exactly has to be rendered a criminal offence under the

respective treaties, the next part (‘VI. B : Modes of Participation : Tackling the Illicit

Traffickers through ‘Joint Criminal Enterprise’ Liability ?’) will focus on the doctrines

that allow for imposing criminal sanctions upon a person for crimes that have actually

129 Left out is an analysis of the procedural aspects of intrastate cooperation in criminal matters in this field. Cfr. Christopher C. Joyner, International Extradition and Global Terrorism : Bringing International Criminals to Justice, 25 Loy. L.A. Int’l & Comp. L. Rev. 493). 130 Cfr. the classic article by Archibald S. Alexander, Arms Transfers by the United States : Merchant of Death or Arsenal of Democracy ?, 10 Vand. J. Transnat’l L. 249 (1977).

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been committed by someone else, and which may be a very useful prosecutorial tool

in the fight against those involved in illicit nuclear trafficking.

VI.b Which substances are covered ?

The current state of the ICL for dealing with illicit trafficking is fragmented : while

‘illicit nuclear trafficking’ has not been defined or separately criminalized, a wide

variety of treaties could potentially play a role for a prosecutor which seeks to assess

whether any instrument applies. The point is that, in line with ICL in general, words

do matter : apart from the fact that these treaties only criminalize certain actions

(dealt with under section C), they each have their own scope of application in terms

of substances to which they apply. If a particular incident of illicit nuclear trafficking

involves a substance that does not fall under the scope of application of the specific

treaty which one seeks to resort to, then that is the end of the story. The treaty does

not apply and cannot be resorted to for holding an individual accountable.

The policy texts invoking ‘illicit trafficking’, dealt with above and this in line with their

generaly vagueness and open-endedness, when they specify to which materials they

apply, indicate that what one has in mind concerns both nuclear materials and

radioactice sources or substances.131 The potentially relevant ICL-instruments,

however, each have their own scope of application and definition of these materials,

requiring particular conceptual rigour, as different concepts are used, each

corresponding to different radioactive sources. All of them need to be clearly

separated when one looks at the conditions under which their unauthorized handling

has been criminalized. For reference purposes, it needs to be indicated here that

Security Council Resolution 1540 (2004) applies to nuclear weapons (see part V b),

still a different category – but a completely undefined one- from the ones that are

dealt with in the ICL-treaties.

In order to understand the implications of the definitions that will be explored, it is

important to realize that high enriched uranium and plutonium are the fissile

131 Here, I use the same approach as the IAEA in its Announcement for a November 2007 Conference on ‘Illicit Nuclear Trafficking : Collective Experience and the Way Forward’ : ‘For purposes of this conference, radioactive material means, nuclear material, as defined in the ‘Convention on the Physical Protection of Nuclear Material’, radioactive sources, as defined in the ‘Code of Conduct for the Safety and Security of Radioactive Sources’ and other radioactive substances which contain nuclides.’, see http://www-pub.iaea.org/MTCD/Meetings/PDFplus/2007/cn154/cn154_Announcement.pdf

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materials that are needed in order to make actual nuclear weapons, while the others

could be used for ‘dirty bombs’.132

The ICL-treaties use various definitions, virtually none of which is overlapping. Four

different concepts have been used and separately defined.

b.1. The broadest category known to the relevant conventions is that of

‘radioactive material’, which has been defined, ‘for the purposes of (that)

Convention’, in the 2005 Convention for the Suppression of Acts of Nuclear

Terrorism.133 Here, ‘radioactive material’ includes both ‘nuclear material’ and

a subcategory of ‘radioactive substances’ that has been defined in the

Convention and where the essential feature, for the present purposes,

resides in the definition’s requirement that the radioactive substance may

‘cause death or serious bodily injury or substantial damage to property or to

the environment’. Therefore, those radioactive substances that cannot cause

‘serious ‘ or ‘substantial’ effects, can be considered to be outside of the

scope of the convention and of ICL, as they are not of such a dangerosity as

to have been considered worthy of inclusion among the treaty-based crimes.

b.1. A non-exhaustive list of ‘radioactive sources’ (which is therefore different

from radioactive substances !) has been enshrined in Annex I to the non-

legally binding ‘Code of Conduct on the Safety and Security of Radioactive

Sources’.134 Those radioactive sources that are not covered by the Code of

Conduct, are referred to by the latter as ‘other potentially harmful radioactive

sources’ and will in any event be irrelevant for ICL, given their lacking the

capacity to pose a ‘significant risk to individuals, society and the

132 On the threat posed by radiological weapons, see generally the 2004 UN Report of the Secretary General’s High-Level Panel on Threats, Challenges and Change, A More Secure World : Our Shared Responsibility, page 40, via www.un.org/secureworld 133 International Convention for the Suppression of Acts of Nuclear Terrorism, United Nations General Assembly, A/59/766, 4 April 2005, open for signature since September 2005 and entered into force on 07 July 2007, Article 1(1) : « ‘Radioactive material’ means nuclear material and other radioactive substances which contain nuclides which undergo spontaneous disintegration (a process accompanied by emission of one or more types of ionizing radiation, such as alpha- beta-, neutron particles and gamma rays) and which may, owing to their radiological or fissile properties, cause death or serious bodily injury or substantial damage to property or to the environment’ ». 134 Code of Conduct on the Safety and Securrity of Radioactive Sources, IAEA, Vienna, latest version 2004, IAEA/CODEOC/2004, II, Scope and Objectives, 2 : ‘This Code applies to all radioactive sources that may pose a significant risk to individuals, society and the environment, that is the sources referred to in Annex I of this Code. States should also devote appropriate attention to the regulation of other potentially harmful radioactive sources’ (underlining added) and II, Scope and Objectives, 3, ‘This Code does not apply to nuclear material as defined in the Convention on the Phyiscal Protection of Nuclear Material, except for sources incorporating plutonium -239.’

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environment’. Obviously, this Code of Conduct does not have any relevance

from the point of view of ICL.

b.3. The quantitavely most restricted while qualitatively most important

category is that of ‘nuclear material’. This concept has been defined both in

the 1980 Convention on the Physical Protection of Nuclear Material

(hereinafter : ‘CPPNM’)135 and in the 2005 Convention Convention for the

Suppression of Acts of Nuclear Terrorism.136

b.4 The 1988 International Convention for the Suppression of Terrorist

Bombings uses (Art. 1 (3)) the terminology of ‘explosive or other lethal

devices’, the definition of which reads that it means ‘(a) An explosive or

incendiary weapon or device that is designed, or has the capability, to cause

death, serious bodily injury or substantial material damage; or (b) A weapon

or device that is designed, or has the capability, to cause death, serious

bodily injury or substantial material damage through the release,

dissemination or impact of toxic chemicals, biological agents or toxins or

similar substances or radiation or radioactive material ». (underlining added)

These words of ‘radiation or radioactive material’ have not been further

defined in this Convention.

Therefore, there are four different concepts, all having originated from a different

background, and the definition of which has thus been drafted with different

purposes or concerns in mind. As there is no single or separate crime of ‘illicit

trafficking’ in ICL, the treaty under which the prosecutions seeks to build its case will

precondition the materials that carry criminally relevant consequences. A contrario, if

a particular case involves materials that do not fall under the definitions just

135 The Convention on the Physical Protection of Nuclear Material, INFCIRC/274/Rev.1, May 1980, art. 1(a) : « ‘nuclear material’ means plutonium except that with isotopic concentration exceeding 80% in plutonium-238; uranium-233; uranium enriched in the isotope 235 or 233; uranium containing the mixture of isotopes as occurring in nature other than in the form of ore or ore-residue; any material containing one or more of the foregoing; ». The concept ‘uranium enriched in the isotope 235 or 233’, has been defined in art. 1(b). In 2005, this Convention has been amended. The latter amendment, however, has not modified either of both paragraphs. 136[122] International Convention for the Suppression of Acts of Nuclear Terrorism, United Nations General Assembly, A/59/766, 4 April 2005, open for signature since September 2005 and entered into force on 07 July 2007, Article 1(2) : « ‘Nuclear material’ means plutonium, except that with isotopic concentration exceeding 80 percent in plutonium -238 ; uranium-233 ; uranium enriched in the isotopes 235 or 233 ; uranium containing the mixture of isotopes as occurring in nature other than in the form of ore or ore reside ; or any material containing one or more of the foregoing ». In parallel with the CPPNM’s approach, the following paragraph defines ‘uranium enriched in the isotope 235 or 233’.

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provided, this means that there will not be criminal liability pursuant to that particular

treaty, though maybe through other sources such as a legislator’s own initiative. This

leads to a patchwork of circumstances which need to be checked before criminal

liability can be contemplated : has the act in question been criminally sanctioned and

did the act involve a material that has been covered under the treaty’s scope of

application ? Both factors precondition the chances of success from the

prosecution’s point of view. The issue of which substances / materials have been

covered under the treaty, however, is just the beginning. Next on the list is the

complex issue of the precise acts that have been covered under the treaty.

VI.c Which acts are covered and in which context has that been done? This Section looks at the five potentally relevant treaties from the point of view of the

actus reus that has been provided for. The treaties will be discussed in chronological

order.

1. The Convention on the Physical Protection of Nuclear Material The 1980 Convention on the Physical Protection of Nuclear Material (hereinafter :

« CPPNM »),137 amended in 2005138 (amendment not yet into force), is part of the

UN architecture of anti-terrorist treaties.139 Contrary to the 1980 version, the 2005

version mentions140 the concept of ‘illicit trafficking’ but, unsurprisingly, this term

bears no relevance from the criminal law point of view.

While Articles 7 and 8 contain, respectively, the actus reus that needs to be

criminalized and the conditions under which a State may exercise its jurisdicton, it is

preliminarily crucial to properly consider the Convention’s scope of application : if a

particular situation does not fall within the latter, none of what follows will be relevant.

137 International Convention on the Physical Protection of Nuclear Material, opened for signature March 3, 1980, 18 Int’l Legal Materials 1419 (1979), entereed into force March 3, 1980. As of May 31, 2007, there were 128 States Parties to the 1980 Convention. However, as of the Aug. 1, 2007, there were only 11 contracting States to the Amendment. 138 IAEA, Report of the Director General, Nuclear Security : Measures to Protect against Nuclear Terrorism : Amendment to the Convention on the Physical Protection of Nuclear Material, GOV/INF/2005/10-GC(49)/INF/6, Sept. 6, 2005 . 139 Cf. The overview of the ‘International Instruments to Counter Terrorism, available at http://www.un.org/terrorism/instruments.html 140 See GOV/INF/2005/10-GC(49)/INF/6, Sept. 6, 2005, New Preamble § 7 : « Desiring to avert the potential dangers posed by illicit trafficking, the unlawful taking and use of nuclear material and the sabotage of nuclear material and nuclear facilities, and noting that physical protection against such acts has become a matter of increased national and international concern ».

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Art. 2 delineates the Convention’s scope of application as follows :

« 1. This Convention shall apply to nuclear material used for peaceful

purposes while in international nuclear transport.

2. With the exception of [articles that are not relevant from the criminal law

point of view] this Convention shall also apply to nuclear material used for

peaceful purposes while in domestic use, storage and transport ».

In terms of its scope of applicability ratione materiae, the CPPNM is limited to

‘nuclear material’, a term elaborated upon above and which only relates to those

radioactive substances situated at the hard end of the spectrum. i.e. those which can

lead to something much more dangerous than a dirty bomb.

Keeping these basic preconditions for the Convention’s applicability in mind, the key

term, of course, is that the Convention only applies to nuclear material « used for

peaceful purposes ». Through the binary logic that is characteristic of the

international legal regulation, this means that nuclear material used for military

purposes will not covered by the convention.141 There will of course be criminal

sanctions for tampering with nuclear material that is used for non-peaceful purposes

(e.g. nuclear material contain in military stockpiles), but these sanctions will entirely

originate from a sovereign legislator’s initiative, none of whom wishes to give away

these core sovereign areas to the possibility of being subject to international

provisions, including the possibility that foreign domestic courts could hear a case.

From the point of view of ICL, the fact remains that the CPPNM does not apply to

nuclear materials in a military contexts.

The linchpin of the Convention’s criminal law dimension resides in Art. 7, a full

analysis of which obviously goes beyond the present contribution. In direct

contradistinction to the definition of ‘illicit trafficking’ which has, e.g. been used to

describe the Illicit Trafficking Database’s scope of application, covering both

« intentional [and] unintentional » incidents the first substantive word of Art. 7

renders it blatantly clear that only the « intentional » commission of certain acts

needs to be made a punishable offence. Unintentional acts cannot – and should not

– be criminally sanctioned.

141 In the 2005 Amendment, new Art. 2(5) this has now been explicitly Stated : « This Convention shall not apply to nuclear material used or retained for military purposes or to a nuclear facility containing such material ».

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The 2005 amendment to the Convention has inserted (new Art. 7 (1) (d)) a possibly

very useful incrimination : « The intentional commission of an act which constitutes

the carrying, sending, or moving of nuclear material into or out of a State without

lawful authority shall be made a punishable offence by each State Party under its

national law ». So far, given the very limited number of ratifying States of the

amendment, this cannot be said to be an existing tool. Its prospects for prosecuting

those involved in illicit nuclear trafficking, are however obvious : mere absence of

lawful authority, by definition a constitutive feature of illicit trafficking, suffices to

trigger criminal liabiilty. The focal point rests on objective factors such as carrying or

moving, thus remaining disconnected from the actual illegal trade in these

substances.

Leaving the 2005 amendment aside, as it is too early to assess how widely it will be

implemented, the answer to the question as to what extent ‘illicit trafficking’ has been

criminally apprehended under the currently existing legal framework, resides in Art.

7, §1 and §2 (the other paragraphs being of less potential relevance) of the CPPNM :

« a. An act without lawful authority which constitutes the receipt,

possession, use, transfer, alteration, disposal or dispersal of nuclear

material and which causes or is likely to cause death or serious injury to

any person or substantial damage to property ;

b. a theft or robbery of nuclear material ; »

Above, under VI.B, separate treatment has already been accorded to the contentious

issue about the values that are sought to be protected by « theft of nuclear

material », as some authors argue that this early incrimination indicates that States

consider it to be of a more elevated nature in terms of the importance of the values

that it seeks to protect.

In terms of its applicability ratione personae, the Convention casts its web wider than

the direct perpetrator, by providing for participatory liability. This issue will be

transversally dealt with for all treaties under ‘VI. B : Modes of Participation : Tackling

the Illicit Traffickers through ‘Joint Criminal Enterprise’ Liability ?’.

An individual who can be prosecuted for « theft of nuclear material », will not

necessarily be the same person as (s)he who subsequently trades the materials,

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after it has been stolen. Can the ‘trader’ be criminally prosecuted under this

Convention? There is an important threshold condition before the answer to this

question will be positive, notably that the unauthorized act involving the nuclear

material, « causes or is likely to cause death or serious injury to any person or

substantial damage to property ». The question can be raised, however, whether it is

feasible to handle these heavily radioactive nuclear materials without knowing that

there is such likelihood. Circumstances precluding wrongfulness could be retained,

on the other hand, in case the individual prosecuted did not know the precise nature

of the materials that (s)he possessed...though even that seems hard to maintain....

If we assume that those involved in the illicit trade on the nuclear black market, are

different from those actually carrying out a terrorist attack (cf. supra the question of

the extent to which the nuclear black market is controlled by transnational organized

criminal groups), the CPPNM offers quite some possibilities for seeking to have

criminal liability imposes. Mere « possession » of nuclear material suffices for such

liability, provided the « causes or is likely to cause » threshold has equally been met.

2. The International Convention for the Suppression of Terrorist Bombings This Convention142 is a classic ICL-treaty, containing a wide range of measures

designed to facilitate intrastate cooperation vis-à-vis its offenders. Confined to its

explicit nexus with the issue of terrorism, and especially confined to attacks against

public buildings and facilities, it includes (Art. 1(3)(b)) ‘toxic chemicals, biological

agents, or toxins or similar substances or radiation or radioactive materials’

(underlining added) within its definition of ‘explosive or other lethal device’, and thus

bears relevance for the nuclear issue without however further defining what exactly

is meant by ‘radiation or radioactive materials’. Just like the CPPNM, the scope

ratione materiae in terms of materials that are covered, has equally here been limited

to a weapon or device « that is designed, or has the capability, to cause death,

serious bodily injury or substantial material damage ».143

The real limitation of this Convention results from its being limited to « explosive or

other lethal devices », meaning that illicit nuclear trafficking in material or

components that have not yet been turned into such a completed device, will

142 International Convention for the Suppression of Terrorist Bombings, opened for signature Jan. 12, 1998, 37 I.L.M. 249, also reprinted in 10 Mich. St. U. Det. C. L.J. Int’l L. 627 (2001). 143 Art. 1(3), definition of « explosive or other lethal device », which includes the quoted phrase both in (a) and (b).

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definitively not be covered by the Convention.144 Contrary to the CPPNM, the list of

acts to be criminalized is much more restricted, as (Art. 2 (1)), only (s)he who

« delivers, places, discharges or detonates » these substances, risks criminal

liability. Mere possession does not suffices, as more activity is required. In line with

other treaties, equally here (Art. 3),145 the Convention only applies to instances

presenting a transnational element.

Contrary to the relatively narrow scope of the acts that can qualify as actus reus

under the Convention, the latter was the first to include a broad new doctrine that

has subsequently been referred to as ‘joint criminal enterprise’-liability.,146 that will be

dealt with below. The bottom line is that the accused needs to have knowledge of the

intention from the group to whom his action contributes, in that they intend to commit

an acts which constitutes a crime under the Convention. Absent such knowledge,

criminal prosecution remains barred : in and of itself, trading in and possession of

nuclear material outside all circuits of legality, does not necessarily entail a criminally

sanctionable illegality. 3. The Convention against Transnational Organized Crime There can be no doubt about the fact that the 2000 United Nations Convention on

Transnational Organized Crime147 constitutes a landmark treaty.148 Entered into force

in 2003, it elevates the participation in an organized criminal group into an offence

that needs to be incorporated as such into the domestic legal system of all

participating States, currently about one hundred and thirty-five in numer. The

Convention itself is supplemented by protocols in the area of illicit

trafficking/smuggling of persons149, on the one hand, and in the area of illicit

trafficking in firearms150 , on the other hand.

144 Thomas Burch, Non-State Actors in the Nuclear Black Market : Proposing an International Legal Framework for Preventing Nuclear Expertise Proliferation & Nuclear Smuggling by Non-State Actors, part III, D, 2 Santa Clara J. Int’l L 84 (2004). 145 Art. 3 indicates under which conditions the Convention does not apply, inter alia « where the offence is committed within a single State, the alleged offender and the victims are nationals of that State (... ) ». 146 Art. 2(3). The joint criminal enterprise liability that has been provided for, extends both to those intended to further the group’s criminal activity or purposes (less relevant for this paper’s hypothesis) or to those contributing « in the knowledge of the intention of the group to commit the offence or offences concerned ». 147 United Nations Convention against Transnational Organized Crime, Annex I to G.A. Res. 55/25, U.N.GAOR, 55th Sess., Supp. No. 49, Vol. I, at 43, U.N. Doc. A/55/49 (2001). 148 For an overview of some of the Convention’s most salient features, see Gerhard Kemp, The United Nations Convention against Transnational Organized Crime : A Milestone in International Criminal Law, 14 S. Afr. J. Crim. Just. 152 (2001). 149 Annex II, Protocol to Prevent, Suppres and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention againsst Transnational Organized Crime ;

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During the negotiations leading to the Convention’s adoptions, a number of

proposals had initially been made that are directly relevant to illicit nuclear trafficking.

Thus, it had been proposed in 1997 that « trafficking in nuclear material » would be

included as an additional topic that should be considered for inclusion.151

Furthermore, as part of the discussion concerning the Convention’s scope of

application, one of the avenues that was being explored by the negotiating States

consisted of seeking to establish a list of offences to which the Convention would

apply ‘in particular’, on the one hand, and of seeking to exemplify a concept of

‘serous crimes’, on the other hand. Among these offences, « stealing of nuclear

material, its misuse or threats to misuse or harm the public, as defined by the 1980

« Convention on the Physical Protection of Nuclear Material », figured throughout

proposals by Mexico, supported by other States, and figured in the negotiations’

rolling texts.152

Eventually, none of these proposals were succesfull and the negotations abandoned

after a while the option to explicitly include nuclear trafficking within its scope. Other

forms of trafficking have been provided for, however. Among those explicitly153 dealt

with are the issues of trafficking/smuggling in persons and of trafficking in firearms.

The absence of such textual inclusion, however, by no means precludes that the

Convention could have a role to play in applying a criminal law framework to illicit

nuclear trafficking, if its general conditions have been fulfilled.

and Annex III to the United Nations Convention against Transnational Organized Crime contains a Protocol against the Smuggling of Migrants by Land, Sea and Air. 150 Protocol against the Illicit Manufacturing of and Trafficking in Firearms,Their Parts and Components and Ammunition, supplementing the United Nations Convention against Transnational Organised Crime, G.A. Res. 55/255, U.N. Doc. A/RES/55/255 (Jun. 8, 2001). 151 United Nations Office on Drugs and Crime, Travaux Préparatoires of the negotiations for the elaboration of the United Nations Convention against Transnational Organized Crime and the Protocols thereto, xx, page 2006, available at http://www.unodc.org/pdf/ctoccop_2006/04-60074_ebook-e.pdf 152 See the previously mentioned Travaux Préparatoires, pages 21 ; 23 ; 24 ;33 and 34. At its second Session, the Ad Hoc Committee included this phrase in its exemplative list of offences constituting ‘serious crimes’. In addition to Mexico, Algeria, Egypt, India and Turkey were among the States proposing to include ‘stealing of nuclear material’ as an explicitly included offence. 153 Interestingly, the Preamble’s last paragraph reflects the hope about the areas in which this instrument could play a role. Illicit nuclear trafficking is NOT among those explicitly mentioned, contrary to « illicit trafficking in endangered species of wild flora and faune ». For an analysis of the way through way the UN Convention against Transnational Organized Crime, with its focus on international criminal law, could complement the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), see Mara E. Zimmerman, Black Market for Wildlife : Combating Transnational Organized Crime in the Illegal Wildlife Trade, 36 Vand. J. Transnat’l L. 1657 (2003).

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Especially, specific acts, going beyond a single jurisdiction154, that are usually

thought of as belonging to the realm of illicit nuclear trafficking, can be prosecuted to

the extent that (1) they are a « serious crime » which carries a penalty of at least four

years deprivation of liberty and (2) that they have been committed by a structured

group of at least three or more persons that were acting in order to obtain, directly or

indirectly, a financial or other material benefit.155 It is up to the prosecution to proof all

these constitutive elements, which fit the hypothesis this paper is concerned with :

middleman involved in illicit nuclear trafficking, purely seeking financial gain while

being indifferent as to the possible intentions of those to whom they provide the

nuclear material in question. The real hurdle preconditioning this Convention’s

applicability, lies in this requirement of a structured group : an individual which is

entirely acting on his/her own, e.g. after having stolen nuclear material, cannot be

prosecuted under this Convention.

The definition of what exactly constitutes a « structured group »156 strengthens the

argument that the Convention could have a significant role to play in the fight against

illicit nuclear trafficking. To the extent that this phenomenon is, in the facts, an issue

of organized criminal groups (as opposed to opportunistic, individually operating

amateurs ; cfr. the discussion under ‘I. Taking a stroll through the nuclear black

market’), the Convention provides a useful conceptual tool.

The Convention stands out in one important respect : it contains no requirement

whatsoever that there be a link with the issue of terrorism157, though the latter is of

course always possible. 158

In addition to those directly involved in the structured group, criminalization needs

also to be provided for persons who participate in the group’s activities, knowing that

such contribution will contribute to the achievement of the criminal aims, on the one

154 See Art. 3(2), setting out when an offence is considered transnational in nature. 155 See Art. 2(a) and 2(b) for the definitions of the terms « organized criminal group » and « serious crime ». 156[See Art. 2 (c) : « ‘Structured group’ shall mean a group that is not randomly formed for the immediate commission of an offence and that does not need to have formally defined roles for its members, continuity of its membership or a developed structure ». 157 For the definitional difficulties encountered, and their interllinkage, see Alexandra V. Orlova and James W. Moore, ‘Umbrellas’ or ‘Building Blocks’ : Defining Terrorism and Transnational Organized Crime in International Law, 27 Hous. J. Int’l L. 267 (2004-2005). 158[ See Preamble, § 8 : « Noting with deep concern the growing links between transnational organized crime and terrorist crimes (...) » and see Resolution 55/25, previously mentioned, §6 : « Calls upon all States to recognize the links between transnational organized criminal activities and acts of terrorism ».

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hand, and those that are ‘aiding and abetting’ on the other hand :159 see infra for a

discussion of the possible extensions ratione personae beyond the direct

perpetrators.

Having said this, it needs to be kept in mind that the true extent to which illicit nuclear

trafficking can be prosecuted domestically under this Convention, will ultimately

depend upon the domestic law of a particular State, as this legal framework is

referred to in terms of its preconditioning that only offences which carry a minimum

of four years deprivation of liberty, will be able to trigger the Convention’s

applicability. These ‘four’ years are something that depend on the national criminal

system in which the Convention becomes incorporated, which will presumably

equally depend on the type of materials involved.

Completely unconcerned with the Security Council’s approach whether transnational

organized crime constitutes an issue endangering international peace and security,

this Convention is a pure ICL-instrument that could thus be called upon to play an

increasingly important role in the fight against illicit nuclear trafficking : by focusing

upon the fact that the criminal group acts in order to obtain, at least indirectly, a

financial or other material benefit, the Convention seems well equipped to prosecute

those who were involved in illicit nuclear trafficking without necessarily having been

inspired by terrorist motives, or without having any such sympathies themselves.

Any prosecution, however, will need to use the Convention’s labels, none of which

explicitly concerns nuclear trafficking. By having dissasociated itself from a

requirement that prosecution is only possible when there is a nexus with terrorism,

the Convention is indeed an instrument that could constitute a crucial tool in the

international community’s combat against the phenomenon of illicit nuclear

trafficking.160 The fact remains, however, that this Convention has not explicitly nor

separately provided for an ICL-framework that regulates illicit nuclear trafficking

because it involves unauthorized handling of nuclear material. Prosecution is

possible, but may not be able to convey the right message about the gravity of the

offence.

159 Art. 5 on Criminalization of Participation in an Organized Criminal Group 160 See generally CarrieLyn Donigan Guymon, International Legal Mechanims for Combating Transnational Organized Crime : The Need for a Multilateral Convention, 18 Berkeley J. Int’l L., 53, 62-63 (2000).

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4. The International Convention for the Suppression of Acts of Nuclear Terrorism The 2005 International Convention for the Suppression of Acts of Nuclear

Terrorism,161 entered into force in July 2007, is the most recent162 in a long series of

UN Conventions163 which impose an ICL-framework to particular acts through which

terrorism manifests itself, this given the absence of agreement, up until today, to

define terrorism in general, efforts underway in that direction to come up with a

‘comprehensive’ convention notwithstanding.164

The Convention adopts « nuclear terrorism » as a new crime under international law

that needs to be made a criminal offence under domestic law and, in line with the

CPPNM, is ratione materiae limited to radioactive material and nuclear material. If

applicable, a wide range of provisions apply that are related to furthering intrastate

cooperation in criminal matters, such as allowing for extradition and mutual legal

assistance. Rather than amending the already existing conventions, mentioned

above, the approach chosen has been to adopt a new convention,165 specially

focused upon the nuclear nature of the material involved while tied up to the terrorist

issue.

It is rather unlikely that an individual who is involved in illicit nuclear trafficking,

without being involved in the preparations of the terrorist acts, will ever be convicted

as a direct perpetrator under the Convention : « possession » of radioactive material,

can only be criminally sanctioned if the said possession is coupled with an intention

to cause death or serious bodily injury, or substantial damage to property or the

environment : in order to prosecute those involved in the chain of illicit nuclear

trafficking, other figures will need to be resorted to. For this purpose, Art. 2(4) allows

for various doctrines of accomplice liability, up until the extended form of joint 161 International Convention for the Suppression of Acts of Nuclear Terrorism, UN Doc A/RES /59/290, 4 April, 2005, reprinted in 44 Int’l Legal Materials 815 (2005). 162 For a history of this Convention’s preceding negotiations, see Christopher C. Joyner, Countering Nuclear Terrorism : A Conventional Response,18 Eur. J. Int’l L. 225, 229-232 (2007). 163 For a list of these treaties, see United Nations Treaty Collection : Conventions on Terrorism, available at http://untreaty.un.org/English/Terrorism.asp 164 On this issue, see generally Ben Golder and George Williams, What is ‘Terrorism’ ? Problems of a Legal Definition, 27 U.N.S.W. L.J.270 (2004) ; Sami Zeidan, Desperately Seeking Definition : The International Community’s Quest for Identifying the Specter of Terrorism, 36 Cornell Int’l L.J. 491 (2003-2004), as well as Ben Saul, Definition of Terrorism in the UN Security Council : 1985-2004, 4 Chinese J. Int’l L. 141 (2005) ; 165 Arguing that this is more effective than seeking to amend these previously existing treaties, see Thomas Burch, Non-State Actors in the Nuclear Black Market : Proposing an International Legal Framework for Preventing Nuclear Expertise Proliferation & Nuclear Smuggling by Non-State Actors, IV Conclusion, 2 Santa Clara J. Int’l L 84 (2004).

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criminal enterprise liability, based upon knowledge of the intentions of the group to

which one contributes.166 It is to these figures that attention will now be turned.

VI.d Modes of Participation : Tackling the Illicit Traffickers through ‘Joint Criminal Enterprise’ Liability ? Liability for acts committed by others remains a contentious issue in ICL167: though

the doctrine’s existence is both defensible and though it has been accepted in

theory168 and in the practice of the treaties, its precise contours remain subject to

controversy.

Holding an illicit trafficker liable through one of the complicity-figures, exercises

particular appeal for the issue at hand, however : by presumption, the person

involved in illicit nuclear trafficking will just be a middleman, channeling the materials

towards someone else, presumably with ever more malicious intentions. As

previously indicated, the middleman does not necessarily know of or approve the

end-user’s terrorist or criminal intentions : by hypothesis for this article, he is just

motivated by profit-seeking, full stop. Therefore, no attention will be devoted to those

who direct or control the crime’s commission, as separate incriminations exist for

such figures. They fall outside the scope of analysis, given their leading role. As

previously indicated, this paper is concerned with the real ‘middlemen’, who play no

further role than transporting, selling etc. the nuclear materials.

In ICL in general, all that matters is either intent or knowledge. «Motive » is entirely

irrelevant for ICL, however reprehensible such motive may be.169 The only relevant

166 Art. 2(4) : « In any other way contributes to the commission of one or more offences [as defined in the Convention] by a group of persons acting with a common purpose ; such contribution shall be intentional and either be made with the aim of furthering the general criminal activity or purpose of the group or made in the knowledge of the intention of the group to commit the offence or offences concerned ». 167 This part on Modes of Participation remains very short compared to some of the more complex doctrinal issues that are at stake, but which go beyond the issue of illicit trafficking. An in-depth analysis of both the ‘aiding and abetting’ and the ‘joint criminal enterprise’-doctrines in the Rome Statute of the International Criminal Court and in the case law of the two ad hoc tribunals, appears in other writing by the author that is currently under preparation, with the working title (manuscript on file), « Businessmen, Merchants and Traders as Contributors to Mass Atrocity : Can They be Held Responsible by the International Criminal Court ? Reconstructing the Law by Seeking the Right Tipping Point Beyond Which Business is No Longer ‘As Usual’ ». 168 Tatjana Hörnle, Commentary to ‘Complicity and Causality’, 1 Crim. Law and Philos. 143 (2007), see 146 – 147 : ‘Reasons for distinguishing between principals and accomplices and how to do it’ 169 See, among others, Alex Obote-Odora, Complicity in Genocide as understood through the ICTY Experience, 22 International Criminal Law Review, 375, 388-389 (2002) : « Motive is not an element

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exception to this resides in the UN Convention against Transnational Organized

Crime, where one of the components of the definition of « organized criminal group »

(Art. 2 (a)), hinges upon the fact that this group was acting « in concerting with the

aim of committing one or more serious crimes or offences », within the meaning of

the Convention, and that their actions were done « in order to obtain, directly or

indirectly, a financial or other material benefit ». Conceptually, however, this

requirement relates to the objective factor of the what can be retained as an

« organized criminal group », as an external factor vis-à-vis the accused. Motive

remains equally irrelevant under the Convention when assessing the accused’s

mens rea.

Leaving the specific issue of the Convention against Transnational Organized Crime

aside, in general, mens rea hinges upon notions such as the accused’s ‘knowledge’

and ‘intentionality’. The precise contours of such notions will need to be assessed for

each of the varios contours that are recognosed in ICL for holding someone liable for

acts committed by others.

Considered in the abstract, two doctrines are potentially relevant for assessing

whether an individual that is involved in illicit nuclear trafficking, can be held liable for

the crimes committed by otherq, i.e. those to whom he transferred, transported, sold

etc. the nuclear material and / or radioactive substances. These two doctrines are

‘aiding and abetting’ on the one hand, and ‘joint criminal enterprise’ on the other

hand. Each will be dealt with in turn.

Aiding and abetting

The most well-known of such ‘derivative liability’ figures is ‘aiding and abetting’ :

widely resorted to by the International Criminal Tribunal for the former Yugoslavia in

its case law, the figure has been redrafted in the Rome Statute of the ICC in such a

way that the threshold that needs to be proven by the Prosecutor, has been put very

high. Whereas Art. 25 (3)(c) of the Rome Statute indeed recognises the potential

criminal liability for a person who « aids, abets or otherwise assists in [the crime’s]

commission or [the crime’s] attempted commission, including [by] providing the

means for its commission », the stumbling block resides in the mens rea-

requirement : the Prosecutor needs to prove that the assistance was provided « for

the purpose of facilitating the commission of such a crime ». Thus, the very wide

understanding of what can constitute actus reus under this provision, has been of complicity. Intent and motive are not interchangeable concepts. Several individuals may intend to commit the same crime but for different motives ».

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counterbalanced by a more than stringent requirement regarding the accused’s

mens rea170 : the accused needs to have a special intent vis-à-vis the commission of

the crime, (s)he needs to have actually wanted this crime’s commission and needs to

have wanted that the contribution (s)he provided, played a fruitful role towards

achieving that aim. It is exactly such specific intent which may be lacking for the

middleman. Therefore, despite the intial conceptual appeal of « providing the means

for its commission » as the Rome Statute’s understanding of procurement, it is rather

unlikely that ‘aiding and abetting’ will be a useful doctrine for prosecuting illicit

nuclear traffickers.

Most importantly, with the exception of the Convention against Transnational

Organized Crime171, and to a lesser extent the 1988 Convention for the Suppression

of Unlawful Acts Against the Safety of Maritime Navigation (not dealt with above)172,

none of the treaties that have been dealt with above (CPPNM ; Terrorist Bombing

Convention ; and Nuclear Terrorism Convention) mention the ‘aiding and abetting’

doctrine or enshrine anything that resembles it.

All of these Conventions, however, mention ‘an act which constitutes participation’173

or ‘participation as an accomplice’174 in their respective offences. Whatever the

precise formulation used, the requirement throughout is that such participation needs

to have been committed intentionally. As it will be up to each ratifying State to

implement this provision on complicity into its domestic criminal law system, it will be

up to the latter to determine how such ‘intentional participation’ needs to be

understood and what its constitutive elements are. It will be the domestic

implementation which will determine the precise conditions under which liability can

be retained under such such participatory liability doctrines. Other than the

170 Kai Ambos, Article 25, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT : OBSERVERS’ NOTES, ARTICLE BY ARTICLE, Otto Trifftere (ed.), Nomos Verlagsgesellschaft, 475 and 483 (1999). 171 United Nations Convention against Transnational Organised Crime, Art. 5 (1) (b) : « (...) when committed intentionally : organizing, directing, aiding, abetting, facilitating or counselling the commission of serious crime involving an organized criminal group ». 172 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, in 27 Int’l Legal Materials 672 (1988), Art. 3 (2) (b) : « Any person also commits an offence if that person (b) abets the commission of any of the offences [under the Convention] perpetrated by any other person or is otherwise an accomplice of a person who commits such an offence ». 173 Convention on the Physical Protection of Nuclear Material, version of 1980, Art. 7 (1) (g) : « The interntional commission of an act which constitutes participation in an offence (...) » 174 International Convention for the Suppression of Terrorist Bombings, Art. 2(3) and Convention Nuclear Terrorism, Art. 2 (4), both of which read : « Any person also commits an offence if that person : (a) participates as an accomplice in an offence... ».

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requirement of intentionality, this means that the national system may diverge in the

precise contours of this doctrine. 175

‘Joint criminal enterprise’ liability

Contrary to what is the case for ‘aiding and abetting’ and for the possibilities to hold

someone liable for ‘participation’ in acts committed by someone else, ‘joint criminal

enterprise’ (hereafter : « JCE ») does not always require a heigthened degree of

intentionality. Under certain circumstances, mere « knowledge » of other people’s

intentions may be sufficient to trigger criminal liability. The JCE-doctrine has been

widely resorted to in the various treaties that have been discussed above.

What exactly are the constitutive elements of this JCE-doctrine ? In fact, the first

treaty in which it has ever been incorporated, is the 1988 International Convention

for the Suppression of Terrorist Bombings, Art. 2 (3) (c) of which reads :

« Any person also commits an offence if that person : (c) In any other way

contributes to the commission of one or more offences (...) by a group of

persons acting with a common purpose ; such contribution shall be

intentional and either be made with the aim of furthering the general criminal

activity or purpose of the group or be made in the knowledge of the intention

of the group to commit the offence or offences concerned ».

(underlining added)

Absent in the 1980 version of the CPPNM, after its first appearance in 1988, this

formulation has been copied in more or less the same terms in the Rome Statute of

the International Criminal Court176 and, among the treaties discussed above, the

2005 version of the CPPNM177 and in the Nuclear Terrorism Convention,178and the

175 There has been recent empirical research in this area vis-à-vis about 15 jurisdictions. Anita Ramasastry and Robert C. Thompson, Commerce, Crime and Conflict: Legal Remedies for Private Sector Liability for Grave Breaches of International Law—Executive Summary (2006) available at www.fafo.no/liabilities, see especially pages 17 – 22 : « Aiding and abetting (complicity) is a crime in most countries – although there are differences as to the type of intent an accomplice must possess ». 176 Rome Statute of the International Criminal Court, Art. 25 (3) (d) : « In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either: (i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or (ii) Be made in the knowledge of the intention of the group to commit the crime ». 177 CPPNM, 2005 Amendment, Art. 7 (1) (k) : « The intentional commission of an act which contributes to the commission of any offence [under the Convention] by a group of persons acting with a common purpose ; such act shall be intentional and shall either (i) be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the

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concept is eagerly resorted to by States in other ICL-documents as well.179

Furthermore, the doctrine has been widely applied180, and criticised for it181, by the

case law of the International Criminal Tribunal for the former Yugoslavia. The just

mentioned treaties diverge on a number of points from the latter’s case law, which

will not be dealt with.

In a somewhat modified formulation, and with the additional requirement that the

accused himself takes an active part in the activities of the « organized criminal

group », a doctrine which resembles the JCE-doctrine has equally been inserted into

the UN Convention against Transnational Organized Crime.182

What are, under the currently existing ICL-treaties, the main constitutive elements

that need to be proven by the Prosecution in order to be able to convict someone

under this doctrine ? commission of an offence [under the Convention], or (ii) be made in the knowledge of the intention of the group to commit an offence [under the Convention] ». 178 nternational Convention for the Suppression of Acts of Nuclear Terrorism, Art. 2 (4) (c) : « Any person also commits an offence if that person (c) in any other way contributes to the commission of one or more offences [under the Convention] by a group of persons acting with a common purpose ; such contribution shall be intentional and either be made with the aim of furthering the general criminal activity or purpose of the group or be made in the knowledge of the intention of the group to commit the offence or the offences concerned ». 179 E.g., most recently, see UN Security Council Resolution 1757 of 30 May 2007 (S/RES/1757 (2007)), establishing a Special Tribunal for Lebanon to prosecute (Annex, Art. 1) « persons responsible for the attack of 14 February 2005 resulting in the death of former Lebanese Prime Minister Rafiq Hariri and in the death or injury of other persons », individual criminal responsibility can be found if a person (Annex, Art. 3 (1) (b)) « contributed in any other way to the commission of the crime set forth in article 2 of this Statute by a group of persons acting with a common purpose, where such contribution is intentional and is either made with the aim of furthering the general criminal activity or purpose of the group or in the knowledge of the intention of the group to commit the crime ». 180 For an overview, see Verena Haan, The Development of the Concept of Joint Criminal Enterprise at the International Criminal Tribunal for the Former Yugoslavia, 5 International Criminal Law Review 167 ; See also Shane Darcy, An Effective Measure of Bringing Justice ?: the Joint Criminal Enterprise Doctrine of the International Criminal Tribunal for the former Yugoslavia, 20 Am. U. Int’l. L. Rev. 153 (2004-2005). 181 Among others, see e.g., Attila Bogda, Individual Criminal Responsibility in the Execution of a “Joint Criminal Enterprise” in the Jurisprudence of the ad hoc International Tribunal for the Former Yugoslavia, 6 Int. Crim. L. Rev. 63 (2006), as well as Alllison Marston Danner & Jenny S. Martinez, Guilty Associations : Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law, 93 Cal. L. Rev. 75 (2005). Providing a very detailed and substantiated criticism of the doctrine, see Jens David Ohlin, Three Conceptual Problems with the Doctrine of Joint Criminal Enterprise, 5 J. Int'l Crim. Just. 69, (2007). Defending the doctrine against these critcisism, and outlining under which conditions such defense can be accepted, see Antonio Cassesse, The proper limits of individual responsibility under the doctrine of joint criminal enterprise, 5 J. Int'l Crim. Just. 109 (2007). 182 UN Convention against Transnational Organized Crime, Art. 5 (1) (a) (ii) : « (...) when committed intentionally, conduct by a person who, with the knowledge of either the aim and general criminal activity of an organized criminal group or its intention to commit the crimes in question, takes an active part in (a) criminal activities of the organized criminal group ; (b) Other activities of the organized criminal group in the knowledge that his or her participation will contribute to the achievement of the above-described criminal aim ».

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Through formulations such as ‘in any other way contributes’, JCE is characterised by

a very broad understanding of actus reus. Acts of illicit trafficking that end up

contributing to the commission of a terrorist act, the theft of nuclear material etc., will

thus easily fall under the scope of application of the heading ‘in any other way

contributes’. The bottom line, of course, remains that the contribution has been done

in a context which falls under the respective Convention’s scope of application,

meaning that an assessment will need to be made both in terms of the precise acts

that are covered, and in terms of the precise nuclear or radioactive material that has

been covered.

The sentence ‘such contribution shall be intentional’ does not mean anything more

than that the contribution needs to have been done non-accidentally. This sentence

does not mean, indeed, that the accused would have needed to have actually

intended that the crime be committed or that his contribution/assistance results in a

successful commission of the crime.

Only the conduct constituting the contribution needs to be intentional, not the

consequence.183

Mens rea under the JCE is further broadened by the fact that, though the precise

formulations somewhat differ, JCE is divided into two different forms, the second of

which is especially broad. Both of these forms stand in a relationship of alternativity

towards each other (or, or) : it suffices for the Prosecution to prove one of them, in

order to be able to have someone convicted. The first of these forms states that JCE

can be established if the accused intended to « further the general criminal activity or

purpose of the group ». In this hypothesis, applied to a case of illicit nuclear

trafficking, the trafficker intends, through his contribution, to further e.g. the terrorist

acts. Such intent is not necessarily present, or more pragmatically, subject to being

proven, hence entailing an acquittal.

What, then, if the illicit nuclear trafficker is just interested in financial profit making

and has no intent whatsoever that the nuclear material he trades in, serves to further

the terrorist act ? In that case, the second prong of the JCE-doctrine allows for

prosecuting someone, irrespective of his/her own intentions, but based upon his/her

knowledge of someone else’s intentions. This ‘someone else’ needs to be a group

183 Jens David Ohlin, Three Conceptual Problems with the Doctrine of Joint Criminal Enterprise, 5 J. Int'l Crim. Just. 69, 78 (2007) ; George P. Fletcher & Jens David Ohlin, Reclamining Fundamental Principles of Criminal Law in the Darfur Case, 3 J. Int'l Crim. Just. 539, 549 (2005).

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that is acting with a common purpose. A full treatment of this second prong of the

doctrine, and the many uncertainties and controversies184 it raises for those who

adopt a defendant-oriented approach under criminal law, as well as whether

doctrines such as ‘reckless indifference’ and ‘wilful disregard’ can have a role to play,

is beyond the scope of the present article.185

The bottom line is that the recent generation of treaties have, through inserting JCE

in an extended form, made it possible that criminal liability can be found based on an

accused’ knowledge about the fact that a group of persons that is acting with a

common purpose intends to commit a given act which is criminal under a specific

treaty. Obviously, this knowledge only needs to pertain to the fact that one knows

about the group’s intention to commit a given act. It is not required that the accused

knows the precise act which is intended by the group, and that this act constitutes

an offence in the legal sense.

There can be no doubt that, from the perspective of the prosecution, JCE exercises

particular appeal. This doctrine is one of the ways in which ICL seeks to apprehend

disperse and loose networks of criminal actors which do not necessarily correspond

to ‘command and control’-structures but which are characterised by the mutual

connivance of a wide variety of individuals that may be loosely connected.186 The

precise way in which such provision will come alive will ultimately depend on the way

in which a particular domestic criminal system has implemented it, and how JCE fits

conceptually into this system. Irrespective of the differences that may result from the

diverging national criminal law systems, participatory liability needs to be seriously

reckoned with as a mode of seeking to impose some form of criminal liability upon

those involved in illicit nuclear trafficking : if a particular State has jurisdiction under a

treaty vis-à-vis a particular case and its defendant, ICL may be able to cast a very

wide web of criminal liability by going beyond the person who actually committed the

184 E.g., arguing that knowledge as such is not relevant from the criminal law point of view, and that the Rome Statute casts too wide a web in terms of who can be prosecuted under it : See Jens David Ohlin, Three Conceptual Problems with the Doctrine of Joint Criminal Enterprise, 5 J. Int'l Crim. Just. 69, 79 (2007). See generally Johan D. Van der Vyver, The International Criminal Court and the Concept of Mens Rea in International Criminal Law, 12 U. Miami Int’L & Comp. L. Rev., 57, 62 (2004) and Elies Van Sliedregt, Criminal Responsibility in International Law : Liability Shaped by Policy Goals and Moral Outrage, European Journal of Crime, Criminal Law and Criminal Justice, Vol. 14/1, 81, 96 (2006) ; David L. Nersessian, Whoops, I Committed Genocide ! The Anomaly of Constructive Liability for Serious International Crimes, 30 The Fletcher F. World Aff. 81 (2006). 185 These issues are being dealt with in other writings by the author, currently under preparation (manuscript on file), with the working title « Businessmen, Merchants and Traders as Contributors to Mass Atrocity : Can They be Held Responsible by the International Criminal Court ? Reconstructing the Law by Seeking the Right Tipping Point Beyond Which Business is No Longer ‘As Usual’ ». 186 Mark J. Osiel, Modes of Participation in Mass Atrocity, 38 Cornell Int’l L. J. 793, 797 (2005).

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terrorist acts and by imposing criminal sanctions to those who contributed to them

while knowing of their intentions. For this ‘segment’ of the nuclear black market, the

potential reach of ICL is guaranteed.

A conviction under JCE, will thus in most cases be a conviction for having been an

accomplice to acts of terrorism. Absence such nexus with terrorism, the treaties

currently fails to criminalize it as such and under this heading : the prosecution will

be based upon the fact of having contributed to, provided the means to, terrorist

activities. If succesful, the conviction will read that this person has been convicted as

an accomplice to terrorists. This conveys the wrong message : in and of itself, and

definitively irrespective of its nexus with terrorism, illicit nuclear trafficking should be

subjected to criminal sanctions, provided it is clearly defined and provided that its

definition remains within the confines of a criminal law framework and logic. The key

is to make the label and the message fit with the act.

CONCLUSION : WHAT’S IN A NAME ? ILLICIT NUCLEAR TRAFFICKING IS EVERYWHERE...BUT INTERNATIONAL CRIMINAL LAW NEEDS TO LABEL IT AS SUCH ! Individuals involved in illicit nuclear trafficking are not operating in a law-free zone. In

some circumstances, it will perfectly be possible to hold them accountable through

criminal sanctions. The latter’s feasibility will more depend on questions such as

whether the State in question has ratified a relevant treaty and whether it can

exercise its jurisdiction in a particular case, rather than that there would be a lack of

provisions that could have a role to play.

Contrary to this possible enforcement gap, there is as such definitively no normative

gap : provisions of a criminal nature apply to some of the acts which belong to the

larger realm of illicit nuclear trafficking. This paper has provided an overview of the

various treaties, and their doctrines on (accomplice) liability, that can provide a basis

for a State when it wants to bolster its legislative framework in order to react via a

law-enforcement approach to the phenomenon of illicit nuclear trafficking by

resorting to the available mechanisms and labels. Given its limited but real potential,

international criminal law needs to be part of a larger strategy to address the threat.

However, when looking closer, when quickly sees that illicit nuclear trafficking, as

such, is not a crime. Nor are its somehow related, though equally still undefined,

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siblings like nuclear smuggling and nuclear transfer. Time and again, when

searching for the precise contours and meaning of ‘illicit nuclear trafficking’ under

international criminal law, the exercise resembles an attempt to get a firm grip on a

bar of soap within a bathtub : there are many ways through which international

criminal law can apprehend it, but all of them are preconditioned on the scope of

application of the respective treaty to which one wishes to resort and all of them

remain indirect and partial. None of these instruments applies to all materials or

substances that are regulated by international nuclear law. Every single time, it will

need to be examined which materials have exactly been covered. In short : if one

eventually manages to catch the bar of soap, one doesn’t say so. Ceci n’est pas une

pipe.

Whereas illicit trafficking is used as an umbrella-term in a policy context, international

criminal law only covers part of the latter. Unintentional acts (reference must be

made to the extended form of ‘joint criminal enterprise’ liability, however) and

instances that remain entirely confined to a single jurisdiction, will virtually always fall

outside its reach anyway. Every single time, the task faced by the criminal law

exercise will be to qualify a given instance of illicit nuclear trafficking in the specific

terms of the domestic legislation which implements a given treaty, none of which

uses the words illicit trafficking as such : only particular acts belonging to its realm,

are subject to criminal sanctions.

Whatever the debates surrounding the legitimacy of the road chosen by the Security

Council when adopting Resolution 1540 (2004), this road was a shortcut which

sought to bypass the classic structural deficiencies which characterise a world

composed of sovereign criminal legislators. Some of the criminal law provisions that

need to be adopted when implementing this Resolution, add another layer to the

patchwork of previously existing treaties. Most of these documents remain

intrinsically linked to the issue of terrorism : a few exceptions notwithstanding, acts of

illicit nuclear trafficking are not apprehended as such, but only because of their

nexus with terrorism.Absent such nexus, most provisions do not allow for criminal

sanctions.

What is more, is that most of the treaties and instruments that have been discussed

will only allow for a prosecution against these murky middleman through the

doctrines of accomplice liability. Thus, they will not be prosecuted as direct

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perpetrators, but only as participants who have contributed to a crime committed by

someone else, i.e. the terrorist.

Because the International Criminal Court is anything but a likely or desirable forum, it

will entirely be up to national criminal justice systems to carry the burden in this

struggle. In this, they can benefit from the provisions of the treaties which seek to

facilitate intrastate cooperation in criminal matters. When a particular instance of

illicit nuclear trafficking arises, various hurdles will need to be overcome before a

criminal trial can take place. The current legal framework is deeply dispersed and

contains a diverging scope of application for each instrument, some of which will

have originated from the Security Council’s commandments, others of which will

remain firmly entrenched in international law’s general feature. The latter means, in

essence, that the law requires that a State consents to be bound by a particular

treaty which, in turn, requires the State to enact criminal legsislation in order to

repress those acts that constitute a violation of the new normative framework.

There is a disconnect between loaded words such as ‘threat to international peace

and security’ that are mobilized by the Security Council when describing illicit nuclear

trafficking, as opposed to the absence of a separate, and explicit, criminalization of

such trafficking in international criminal law. The selective embodiment of the

international community which is in charge of matters of international peace and

security, labels the threat in the gravest terms available, but disperses its approach

when it comes down to providing for criminal sanctions against individuals.

It may very well be that ‘illicit nuclear trafficking’ is too broad, too open-ended as a

notion in order to be able to be operationalized within the realm of a criminal tribunal.

Currently, the existing definitions most definitively include aspects that are

unacceptable from a criminal law point of view. However, sorting out unintentional

acts from the definition, and inserting clear criteria related to the crossing of an

international border, can easily be done when designing an international criminal law

framework. One would retain the core, and its label, while outsourcing the ballast to

other normative frameworks than the criminal one.

The current state of the law goes against the idea that the law should seek to provide

‘representative labelling’ : « The label applied to an offence, ought fairly to represent

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the offender’s wrongdoing ».187 Currently, international criminal law does not do so :

though illicit nuclear trafficking may very well lead to nuclear terrorism, it is not the

same, and this teleological fear should not precondition trafficking’s existence as a

separate crime. The law should take this difference into account : merchants in

deadly radioactive substances are criminals, but not necessarily terrorists. Refining

the conceptual toolbox should be at the order of the day in order to clearly indicate

what the conviction is for188 : these acts are worthy of criminal sanctions because

the individuals involved seek to make profit out of selling lethally dangerous

substances, with total disrespect of the possible consequences. The type of crime is

different from terrorist actors that are seeking to deliver a deadly message for e.g.

their political purposes. Whether or not the merchandise that is being sold by those

involved in illicit nuclear trafficking, ends up being used for terrorist objectives, does

not diminish the fact that it is an egregious act that goes against the interests of the

international community as a whole, even if the particular individual involved is not

aware of the eventual destination which others have in mind for the substances that

are sold.

International nuclear security law can rely on international criminal law when it

comes down to tackling illicit trafficking, but should reconsider the current gap

between political rhetoric and legal terminology for the courtroom. Words do matter,

but are not available so far.

Given the threat it poses, and the many values possibly endangered by acts of illicit

nuclear trafficking, it remains an open question whether the current state of the law is

the best that can be hoped for, or whether the step should and could be taken to

name illicit nuclear trafficking for what it is without having to get there via a detour : in

and of itself an international crime which violates the interests of the international

community.

187 Andrew Ashworth, The Elasticity of Mens Rea, in Crime, Proof and Punishment : Essays in Memory of Sir Rupert Cross, London, Butterworths, 1981, page 45. See also Glanville Williams, Convictions and Fair Labelling, 42 Cambridge L.J.85 (1983). Applying this theory to the specific area of international criminal law, see David L. Nersessian, Whoops, I Committed Genocide ! The Anomaly of Constructive Liability for Serious International Crimes, 30 Fletcher F. World Aff. 81 (2006) at 96 : « Broadly stated, the fair labeling principle requires crimes to fairly represent both the injury and the wrongdoing at issue – what the offender did and what he meant to do ». 188 AP Simester and Robert Sullivan, CRIMINAL LAW : THEORY AND DOCTRINE, 2nd edition, 2003, at 45 : « [T]he law must make clear what sort of criminal each offender is – what the conviction is for. It should communicate to the defendant, so that he may know exactly what he has done wrong and why he is being punished, in order that his punishment appears meaningful to him, not just as a arbitrary harsh treatment. In additon, the law should communicate the crime to the public, so that it too may understand the nature of the transgression ».

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EXTENDED ABSTRACT This paper addresses the following question : which role can be played by international law, and more particularly by international criminal law, as part of the fight against illicit trafficking in nuclear materials and other radioactive substances ? As its point of departure, it takes an occasional news item : law enforcement authorities have discovered radioactive substances that are being trafficked and transported outside the realm of legality. They announce that this discovery has most probably prevented these materials from being used in a terrorist attack that could inflict, given the highly dangerous nature of such substances, a huge amount of casualties upon direct impact, as well as unforeseeable consequences in the long run. Armageddon has been averted, this time at least, but does the current legal framework allow us to deal with these individuals that were trying to make profit out of a transaction in which radioactive substances were changing hands? Part I will deal with the basic question of setting out the phenomenon’s contours : what is this all about? One often speaks with fear about a nuclear black market that is ‘somewhere’, ‘insivibly’ out there. Does the international community have any credible understanding of this threat, and is the latter defined? Against the background of the UN Security Council’s use of the words that such illicit trafficking constitutes a threat to international peace and security, Part II examines what has been done so far by States and international organizations in order to prevent such trafficking from occurring in the first place. Both preventive and reactive mechanisms need to be integral parts of a comprehensive strategy to deal with illicit trafficking. Their respective interplay, and (dis)advantages, will therefore be examined. Shifting from the action taken so far, to the legal framework which exists on paper, Part III assesses whether the international community, which uses the terms ‘illicit nuclear trafficking’ quite often, has an agreed upon definition of this concept, and whether the latter could be operationalized when seeking to hold individuals liable via criminal sanctions. Parts IV to VI exclusively deal with the point of view, if any, of international criminal law. Thus, Part IV will examine whether the International Criminal Court, which has jurisdiction over three of the most egregious crimes that can be committed by human beings, could have any role to play in this field. This will raise fundamental questions such as whose and what values are endangered by illicit nuclear trafficking. Subsequently, Part V looks at the role that has so far been played by the Security Council in terms of mandating States to enact criminal legislation that could be used in the fight against such trafficking. The wide variety of international criminal law treaties that could potentially be invoked when seeking to prosecute those involved, will be examined in Part VI, both from the point of view of the radioactive substances to which they apply, and from the point of view of the precise acts that have been criminalized. Lastly, this Part will look into the possibilities that exist under these treaties to hold someone liable for having been an accomplice to acts committed by others, namely the actual terrorists that would be willing to use those substances trafficked in. Drawing upon, and partially summarizing, the previous analysis, this paper’s Conclusion reflects upon ways of getting beyond the current picture that is provided by the legal framework: while the latter is full of rhetoric about illicit nuclear trafficking in other than criminal law contexts, international criminal law does not contain a separate and explicit crime that actually uses this term.

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