The July 2007 National Intelligence Estimate (NIE) on “The Terrorist Threat to the U.S. Homeland” contains the assessment of the U.S. intelligence community that “al-Qa’ida will continue to try to acquire and employ chemical, biological, radiological, or nuclear material in attacks and would not hesitate to use them if it develops what it deems is sufficient capability.” [1]

As part of the international response to counter such threats, the world community has sought to strengthen its network of multilateral nonproliferation institutions. The most recent addition was the International Convention for the Suppression of Acts of Nuclear Terrorism. This accord, also known as the Nuclear Terrorism Convention, entered into force on July 7, 2007, the 30th day after receipt of the 22nd instrument of ratification, in this instance from Bangladesh. It aims to criminalize specific acts and threats that involve nuclear and radioactive materials.

Background
After the Cold War, heightened concerns about WMD terrorism led the United Nations (UN) to examine international legal instruments relating to international terrorism. In 1996, after the UN Secretary General concluded that existing treaties did not fully cover WMD terrorism issues, the General Assembly established an Ad Hoc Committee “to elaborate an international convention for the suppression of terrorist bombings and, subsequently, an international convention for the suppression of acts of nuclear terrorism, to supplement related existing international instruments, and thereafter to address means of further developing a comprehensive legal framework of conventions dealing with international terrorism.” [2]

Since then, the Ad Hoc Committee has produced three anti-terrorism treaties that the UN General Assembly has subsequently adopted. The International Convention on the Suppression of Terrorist Bombings was adopted in 1997 and entered into force in 2001. The International Convention on the Suppression of Financing of Terrorism was adopted in 1999 and entered into force in 2002. Most recently, in April 2005, the 59th UN General Assembly adopted by consensus the International Convention on the Suppression of Acts of Nuclear Terrorism. [3] Although the text of the convention took seven years to negotiate, more than 30 countries – including China, Russia, and the United States – signed the convention within a year after it opened for signature on September 14, 2005. [4]

In September 2006, the General Assembly adopted the UN Global Counter-Terrorism Strategy. Among other matters, it calls for universal adherence to all anti-terrorism conventions. Although a continued deadlock in the United Nations over how to define terrorism has blocked completion of the proposed Comprehensive Convention on International Terrorism, the nuclear terrorism treaty bypassed this issue by describing only prohibited behavior, without characterizing the nature of the persons perpetrating such acts, and it became the first UN-approved counterterrorism convention completed since the September 11, 2001, terrorist attacks on the United States.

Main Provisions
Article 2 of the Nuclear Terrorism Convention defines, as an offense against the convention, the unlawful and intentional possession of radioactive material or the possession, or attempted possession, of any nuclear or radiological explosive or dispersal device with the intent to cause (1) death or serious bodily injury; or (2) substantial damage to property or the environment. It also prohibits the unlawful and intentional use, or attempted use, of any radioactive material or radiological dispersal device in a manner that releases, or risks the release of, radioactive material. “Radioactive Material” is defined in the treaty to include both highly radioactive substances (potentially usable for radiological dispersion devices) and nuclear material, like uranium (potentially usable for the production of nuclear weapons). A person commits an offense if he or she participates directly in such activities, acts as an accomplice, organizes or directs others to commit an offense, or in any other way contributes to the commission of an offense as defined by the convention.

The convention requires States Parties to establish under national law the offenses set forth in Article 2 as criminal acts and to make those offenses punishable by suitably severe penalties. A State Party must assume jurisdiction over the offenses in Article 2 when they are committed: (1) in the territory of a State Party; (2) on board a vessel flying the flag of the State Party or an aircraft registered under the laws of the State Party; or (3) by a national of the State Party. A State Party may establish jurisdiction over offenses when the offense is committed: (1) against a national of the State Party; (2) against a government facility of the State Party located abroad; or (3) by a stateless person who has his or her habitual residence in the territory of the State Party.

States Parties also incur the obligation to either prosecute or extradite a person alleged to have committed an offense defined in Article 2. States Parties must ensure that such criminal offenses have no justification under national law and that national law makes the offenses extraditable. States Parties are required to afford each other the greatest measure of assistance in connection with investigations or criminal or extradition proceedings brought against those alleged to have committed the offenses identified in Article 2.

No obligation to extradite or afford mutual legal assistance arises if a requested State Party has substantial grounds for believing that an extradition or mutual legal assistance request has been made for the purposes of prosecuting or punishing a person on account of his or her race, religion, nationality, ethnic origin, or political opinions. The convention also provides alleged offenders with specific rights guaranteed under applicable provisions of international law. The convention does not apply to offenses committed within a single State Party and when (1) the alleged perpetrator and the victims are nationals of that State Party, (2) the alleged offender is found in the territory of that State Party, and (3) no other State Party has a basis under the convention to exercise jurisdiction. [5]

Other articles provide that States Parties that seize or otherwise take control of radioactive materials, devices, or nuclear facilities following an act of nuclear terrorism are required to render the material, device, or facility harmless and to ensure that any nuclear material is secured in accordance with International Atomic Energy Agency (IAEA) safeguards. The convention also contains rules for the return of radioactive material, devices, or nuclear facilities to the State Party to which it belongs or from which it was stolen. States Parties are obliged to prevent offenses identified in the convention by making every effort to adopt measures to ensure the protection of radioactive material, taking into account IAEA recommendations.

Many disarmament advocates criticized the convention for having excessively modest ambitions. In particular, they urged increased attention to abolishing nuclear weapons. [6] After some debate, however, the drafting countries decided not to address issues involving the possession and use of nuclear weapons, such as the legality of the use, or threat of use, of nuclear weapons by states.

International Perspectives
As of July 29, 2007, the convention had 24 States Parties (i.e., countries whose governments have both signed and ratified the treaty) and 115 signatory States. The current States Parties are Austria, Bangladesh, Belarus, Comoros, Croatia, Czech Republic, Denmark, El Salvador, Hungary, India, Kenya, Latvia, Lebanon, Lithuania, Mexico, Mongolia, Panama, Romania, Russian Federation, Serbia, Slovakia, South Africa, Spain, and the Former Yugoslav Republic of Macedonia. [7]

UN Secretary General Ban Ki-moon, characterizing nuclear terrorism as “one of the most serious threats of our time” since “[e]ven one such attack could inflict mass casualties and create immense suffering and unwanted change in the world forever,” encouraged UN members to adopt the convention because “it will help prevent terrorist groups from gaining access to the most lethal weapons known to man.” He added that “among other matters” the convention “will encourage cooperation among States, which is crucial in defeating terrorism.” [8]

The Legal Counsel of the United Nations, Nicolas Michel, stated that “nuclear terrorism is potentially one of the most serious threats to international stability – since one single act of this nature would have widespread negative repercussions. The International Convention for the Suppression of Acts of Nuclear Terrorism is an important part of the legal counter-terrorism framework of the United Nations system, and its adoption two years ago represented a significant milestone in the work of the General Assembly to combat the scourge of international terrorism.” [9]

Antonio Maria Costa, Executive Director of the UN Office on Drugs and Crime (UNODC), also welcomed the convention’s entry into force. UNODC assists member states in ratifying and implementing the 13 international conventions and protocols related to terrorism by providing support for the incorporation of their provisions into national legislation and by strengthening the capacity of national criminal justice systems to implement them. Costa affirmed the eagerness of UNODC to support the nuclear terrorism convention as well. He released a statement that, “Indeed, we are the only UN body mandated, empowered and equipped to provide on-the-ground counter terrorism assistance on legal issues to member states.” [10]

Russian officials claim pride of authorship in that Russia submitted the text that served as the working draft of the treaty in 1997. [11] At the time, many other governments worried that terrorist or criminal organizations might gain control of nuclear material or even a nuclear device from Russia or the other former Soviet republics. Indeed, in late 1997 Alexander Lebed, then a senior Russian national security official, claimed that Russian authorities could not account for approximately 100 suitcase-sized nuclear weapons, developed during the Soviet period for special operations, such as preemptive nuclear strikes in Western countries. [12] Subsequent developments suggested that the claim was without foundation. Nonetheless, the episode undoubtedly gave added impetus to efforts by Russian officials to counter international concerns about Russian “loose nukes,” leading them to strengthen nuclear security procedures and affirm Russia’s support for measures such as the convention.

On September 14, 2005, President Vladimir Putin became the first national leader to sign the convention. Thus far, Russia is the only permanent member of the UN Security Council to have ratified the accord. After Russia submitted its document of ratification regarding the convention to the UN Secretary General on January 29, 2007, the Russian Foreign Ministry issued a statement that “its speedy enforcement and full observance by all states are essential.” The statement added, “Russia is determined to promote the enforcement of the convention and make it universal. It will also strictly and diligently observe all the provisions of the treaty.” [13]

The other four permanent UN Security Council members – China, France, the United Kingdom, and the United States – have signed but have not yet ratified the pact or enacted special national legislation to implement it. All four countries, and Russia, also are recognized as nuclear weapons states under the nuclear Nonproliferation Treaty. The governments of Iran, suspected of seeking the option to develop nuclear weapons, and North Korea and Pakistan, which have tested nuclear weapons, have refused even to sign the convention. [14]

India is the only other state that has openly tested nuclear weapons to have ratified the convention, a step it took on December 1, 2006. [15] Indian External Affairs Minister Shri Pranab Mukherjee cited India’s ratification of the convention as evidence of its commitment to implementing the UN Global Counter-Terrorism Strategy (adopted last September by the General Assembly) as well as of India’s support for other international counterterrorism initiatives. [16]

Israel, widely suspected of having an unacknowledged nuclear arsenal, signed the convention on December 27, 2006, just before the December 31, 2006, signing deadline. The Israeli representative to the United Nations, Ambassador Dan Gillerman, described Israel’s decision to sign the convention as evidence of its contribution to global efforts to combat terrorism and as further evidence of its support for international cooperation in the fight against terrorism. [17]

Japan has signed the convention and the Japanese cabinet has endorsed legislation that would align Japanese domestic law with that of the convention’s requirements. [18] The German government, another country with a large civilian nuclear power industry, has also introduced a bill in its national legislature that would establish the legal prerequisites for ratifying the convention. [19]

The government of China signed the convention on September 14, 2005. Shen Dingli, the director of the Center for American Studies at Shanghai-based Fudan University wrote that, “With this convention in place, the agreements reached by the international community have basically covered all aspects in fighting terrorism. . .The convention has filled a gap in international laws, in terms of fighting nuclear terrorism.” The author maintained that the convention’s entry into force “will give China more opportunities for international cooperation in reinforcing the country’s relevant laws and regulations, and strengthening the protection of sensitive nuclear materials. All this, in turn, will facilitate our efforts in fighting cross-border nuclear terrorism.” [20] When they met in Delhi in February 2007, the foreign ministers of China, India, and Russia issued a communiqué calling for the convention’s earliest possible enforcement. [21]

The United States signed the convention on September 14, 2005, the first day it opened for signature. On July 12, 2007, President George Bush transmitted the text to the U.S. Senate for its advice and consent to ratification. He simultaneously submitted a report by the State Department that included various understandings and reservations the Administration had concerning the convention. The President indicated that the Administration would submit to the Congress separately the recommended legislation necessary to implement the convention. [22]

Conclusion
The Nuclear Terrorism Convention is part of a mutually-reinforcing network of international initiatives aimed at reducing the danger of nuclear terrorism and covers certain issues not specifically addressed elsewhere.

• The 1980 Convention on the Physical Protection of Nuclear Material (CPPNM), for example, requires parties to protect nuclear materials from theft or diversion during international transit and to enact laws to criminalize the deliberate misuse of these materials to cause injury. The 2005 amendment to the CPPNM, once it enters into force, will extend these requirements to nuclear materials used domestically. But the CPPNM covers only nuclear materials in civilian, “peaceful” uses, not materials from military programs and does not extend its protection and criminalization requirements to radioactive sources. In contrast, the Nuclear Terrorism Convention requires parties to criminalize deliberate misuse of nuclear materials – which it defines to include radioactive materials – irrespective of whether they are used in peaceful or military programs. [23]
  
  
• UN Security Council Resolution 1540, of April 2004, also addresses the nuclear terrorism threat. [24] Adopted pursuant to Chapter VII of the UN Charter, it requires all UN member states to adopt domestic security measures and export controls to prevent terrorists from acquiring nuclear, chemical, or biological weapons or related materials (without regard to their civilian or military origin); it also requires states to prohibit non-state actors from producing weapons of mass destruction or using them for terrorist purposes (a term not defined in the resolution). Like the CPPNM, however, Resolution 1540 does not cover misuse of radioactive materials. [25]
  
  
• The 2002 G-8 Global Partnership Against the Spread of Weapons and Materials of Mass Destruction is a voluntary undertaking, in which the G-8 and other participating states have agreed to spend $20 billion over ten years to help Russia and other nations needing assistance to secure nuclear and radioactive materials, among other steps, to reduce the threat of nuclear terrorism. [26]
  
  
• The 2006 Global Initiative to Combat Nuclear Terrorism also shares the goals of the Nuclear Terrorism Convention, but like the G-8 Global Partnership is a voluntary arrangement, rather than a binding international undertaking. With some 50 participating nations, the Global Initiative focuses on the implementation of measures to combat the threat of nuclear terrorism, in particular, through international cooperation in law enforcement and intelligence sharing. [27]
  requirements by States Parties.

Richard Weitz – Hudson Institute