UNITED NATIONS’ FIGHT AGAINST NUCLEAR TERRORISM - June 6, 2006

War on terror has many front lines. Besides numerous intelligence agencies and military forces actively taking action to eliminate terrorist threat around the world, there are many other groups of people and organizations willing to contribute to this great effort. After the September 11th attacks, terrorism became very urgent issue to global security and has remained such one until today. Nuclear terrorism as an ultimate threat to the world’s peace and stability attracted close attention of international community. 

On April 13, 2005, the United Nations adopted International Convention for the Suppression of Acts of Nuclear Terrorism, which has been the first such kind document since the terrorist attacks on America in 2001. Many politicians and countries around the world warmly welcomed the newest development. U.S. Department of State issued an announcement expressing government’s satisfaction and hope that the novel instrument will strengthen “international legal framework to combat terrorism”. The idea of the Convention was strongly supported by both George W. Bush and Russian President Vladimir Putin.

The Convention was adopted by General Assembly without a vote by its resolution 59/290. The intent of the document was to prevent acts of nuclear terrorism. Article 2 of the Convention created some new categories of crimes previously not described in international law. Unlawful and intentional possession of radioactive material, as well as manufacturing or possession of radioactive device with the intent to cause death, serious bodily injury, substantial damage to property or environment was established a crime. Usage in any way and threat to use of radioactive material, a device or using/damaging nuclear facility in a way, which releases or risks the release of radioactive material were described as offences as well. Moreover blackmailing any State, international organization, natural and legal person, by such kind of criminal activities, essentially to force them to refrain from doing an act was explicitly prohibited. An attempt to commit the above mentioned offences, participation as an accomplice, organization and direction of such crimes or contribution in any other way were described as other offences.  

Unfortunately as the Convention applies only to acts committed by individuals it remains doubtful if the creation of such new types of offences was necessary and that it gave the international community some extra tools to combat terrorism. As a matter of fact in the majority of countries, which are endangered by terrorism threat, it is already possible to convict an individual who would commit such kind of offences without adopting the Convention’s regulations. For example, Title 18 (Crimes and Criminal Procedure) of the federal U.S. Code contains the whole chapter devoted to terrorism crimes. Under the Sec. 2332a of Chapter 113B (“Terrorism”) of the U.S. Code it is possible to convict an individual who unlawfully uses, threatens to use, attempts or conspires to use a weapon of mass destruction. Radioactive materials and devices are regarded such weapons. Despite that obvious fact, Article 5 of the Convention requires every state, which ratifies the treaty to establish under its national laws the offences set forth in its Article 2. From strictly legal point of view it seemed superfluous to additionally expand a list of terrorist offences in respect to particular weapons of mass destruction a terrorist group or individual might use to inflict harm on a victim state and society. Radioactive materials/devices are merely specific kind of tools among many other tools, such as biological and chemical weapons, which can be used to conduct a terrorist attack at large scale. The national criminal law has been already enough flexible and efficient to be utilized to penalize an individual using any type of weapons of mass destruction. 

Furthermore Article 7 of the Convention provided that all parties should prohibit in their territories illegal activities of persons, groups and organizations that encourage, instigate, organize, knowingly finance or provide technical assistance and information or engage in the preparation of those offences. Presently there are many states, which allegedly provide support to terrorist organizations, including such countries as Iran, Syria or former Afghanistan. As a matter of fact, nuclear terrorism may be regarded by such states as a part of their military strategy in a potential war against the United States or other countries. Therefore the implementation/execution of this provision may prove to be very difficult, if not impossible, in certain parts of the world. At first glance it looks more like a wishful thinking and political fiction that those states would resign from supporting terrorism only because of ratifying the Convention.

Article 12 of the Convention secured the rights of a suspect taken into custody in connection with the mentioned crimes. According to that provision a detainee should be guaranteed “fair treatment, including enjoyment of all rights and guarantees in conformity with the law of the state in the territory of which that person is present and applicable provisions of international law, including international law of human rights”. The detainee’s rights were described very broadly. The terms used by UN lawmakers such as “fair treatment” and “applicable provisions of international law” remain unspecified, giving a room for various understanding and interpretation. Nevertheless the main purpose of this provision was to ensure that detention of suspects and investigation of alleged crimes would be conducted within a rule of law set forth by international and national legal systems. As a result a detainee was guaranteed the same rights as a person taken into custody in connection with any other kind of criminal offence. Additionally the Convention elaborated on extradition problems and special requirements connected with prosecution of offenders.

Generally the Convention focused more on detention issues and detainees rights than on creating legal means to prevent terrorism. Besides, it established some legal grounds for closer cooperation and exchange of information between the parties of the Convention.

The adoption of the Convention was largely interpreted as a political demonstration of the unity of the United Nations’ members in the war against terror. The Foreign Minister of Canada, Mr. Pierre Pettigrew, said that the Convention “demonstrates the resolve of the international community to work multilaterally to address the issue of terrorism”. However, it remains uncertain to what extent this latest development can contribute to combating international terrorism and if it can really play a significant role in preventing nuclear terrorist attack on any member state of the United Nations.

Sebastian Aulich

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