Nuclear terrorism treaty: Bridging the split
Guest Column By Dr. Rohan Perera
Legal Advisor, Ministry of Foreign Affairs, Chairman, United Nations Ad-hoc Committee on Measures to Eliminate International Terrorism
The United Nations General Assembly, adopted by consensus on 13 April 2005, the International Convention for the Suppression of Acts of Nuclear Terrorism, prepared by the UN Ad-hoc Committee on Measures to Eliminate International Terrorism. UN Secretary General, Kofi Annan characterized the Nuclear Terrorism Convention as one which would strengthen the international legal framework against one of the world's most urgent threats. "The Convention would help prevent terrorists from gaining access to the most lethal weapons known to humanity. It will also strengthen the international legal framework against terrorism which included 12 existing universal Conventions and Protocols," he added.

The Ad-hoc Committee which was established by the General Assembly in 1996, was mandated to elaborate, as a matter of priority, an International Convention for the Suppression of Terrorist Bombings, addressing specifically the need to counter indiscriminate use of bombs and explosives targeting public buildings and facilities, including public transportation systems. This initiative was launched by the G8 countries, against a backdrop of a series of bomb explosions, which occurred across the globe at the time, including in Sri Lanka, notably the Central Bank bomb, causing untold devastation and misery to large number of innocent civilians. The Terrorist Bombings Convention was successfully negotiated and adopted by the General Assembly on 15th December 1997.

The United Nations Ad-hoc Committee then negotiated and finalised the International Convention for the Suppression of Financing of Terrorism, an initiative by France, to which the international community attached the highest priority for the purpose of addressing the vital issue of fund raising by terrorist groups, both directly, and indirectly through front organisations. Sri Lanka was in the forefront among the group of countries which called for a global ban on fund-raising by terrorist groups that sustained their campaign of terror. This Convention was adopted by the General Assembly on 15th July, 2000.

The Ad-hoc Committee was also mandated by the General Assembly to negotiate a Convention on the Suppression of Acts of Nuclear Terrorism, on the basis of a proposal made by the Russian Federation. The alarming scenario that could emerge, if nuclear weapons or material should fall into terrorist hands, had preoccupied both experts and layman alike in recent times, particularly after the disintegration of the former Soviet Union. These anxieties were heightened amidst reports that there is a great deal of enriched fissionable material unaccounted for, mainly from the former Soviet Union which are being smuggled freely across international borders in Central Asia. A former National Security Chief of the Russian Federation is reported to have stated in a US television interview, that there were about 100 suitcase sized nuclear weapons missing and unaccounted for.

The negotiations on the draft nuclear terrorism Convention commenced in the UN Ad-hoc Committee in 1998. The draft Convention, which is based on precedent sectoral Conventions on suppression of international terrorism, such as the anti-hijacking Conventions, the hostage-taking Convention, the terrorist bombings Convention, etc. provides for an "extradite or prosecute regime" imposing obligations on states, either to extradite or to prosecute a person who commits an offence under the Convention. The underlying rationale of this regime is that no terrorist offender, who commits an act of nuclear terrorism as defined in the Convention, should find safe haven in the territory of any State.

Recognising the grave nature of an act of nuclear terrorism, the defence normally available in extradition proceedings, namely that a particular act was committed in furtherance of a political objective or inspired by political motives, i.e. the "political offences exception" is denied to an offender, in terms of the Nuclear Terrorism Convention.

Scope of offences
Article 2 of the Convention defines in precise terms the scope of offences covered under the Convention. The possession or use of radioactive material or device, with intent to cause death or serious bodily injury or with intent to cause substantial damage to property or the environment, is made an offence under the Convention. It is also an offence to cause damage to a nuclear facility in a manner which releases or risks the release of radioactive material, when such act is committed with intent to cause death or serious bodily injury or with intent to cause substantial damage to property or the environment or with intent to compel a natural or legal person or an international organization or state to do or refrain from doing any act. Any person also commits an offence, if that person threatens under circumstances which indicate the credibility of the threat or demands unlawfully and intentionally, radioactive material, a device or a nuclear facility by threat, under circumstances which indicate the credibility of the threat or by use of force. Attempts to commit any of the offences under the Convention, participation as an accomplice or the organisation or directing others to commit these offences and conspiracy to commit any of the offences by a group of persons acting with a common purpose, also constitute offences under the Convention. Each State Party is obliged under Article 5, to establish as criminal offences under its national law, the offences set forth in Article 2 and to make these offences punishable by appropriate penalties, which take into account the grave nature of the offences.

Unique nature of the Convention
The Nuclear Terrorism Convention is, in a sense, unique when compared to the existing sectoral Conventions on the suppression of international terrorism.

These precedent Conventions were formulated to address specific forms and manifestations of terrorism that had already arisen in the global scene. The spate of hijackings which took place in the middle east in the 1970s led to the international initiative by the International Civil Aviation Organization (ICAO), which resulted in the Tokyo, Hague and Montreal Conventions against hijacking of aircraft. The horrendous Munich massacre at the Munich Olympic Games in 1972 led to the German initiative in the United Nations General Assembly, to negotiate the Convention against Hostage Taking. The increasing attacks on shipping highlighted by the hijacking of the luxury cruise liner "Achille Lauro" in the Mediterranean, led to the initiative by the Inter-governmental Maritime Organization (IMO) in 1988 to negotiate the International Convention for the Safety of Maritime Navigation. Similarly the spate of bombings ranging from Manchester, to Riyadh, Sri Lanka to Dar-es-Salam and Nairobi in the 1990s led to the G-8 initiative for the Convention on the Suppression of Acts of Terrorist Bombings.

In the case of the Convention on Nuclear Terrorism, on the other hand, it anticipates a possible scenario that could arise where nuclear material falls into unlawful hands such as terrorist groups, rather than responding to such situation ex post facto. Towards this end, the Convention provides for an international cooperative regime, whereby state parties are obliged, inter-alia, to take legislative, administrative and technical measures to ensure the protection of nuclear material, nuclear fuel, radioactive substances within their territory.

In comparison to existing Conventions which contain very broad and general provisions on rendering of mutual assistance, the Nuclear Terrorism Convention contains very specific provision on such co-operative measures. It requires State Parties to exchange accurate and verified information, to detect, prevent, suppress and investigate the offences set out in the Convention. In particular, state parties are required to take appropriate measures in order to inform without delay, other concerned states in respect of the commission of any of the offences under the Convention, as well as to furnish any information on preparations to commit such offences about which it has learnt and also where appropriate to inform the concerned international organisations such as the International Atomic Energy Agency (IAEA). These core obligations constitute the preventive measures States Parties are obliged to adopt.

Dealing with crisis situations
The Convention, in Article 18, sets out the specific modalities for assistance to be extended by one state party to another in a crisis situation, involving nuclear material in the possession of terrorists. It also contains provision requiring a state party to take necessary measures to render assistance to another during a post crisis situation.

Article 18 of the Convention requires that upon completion of proceedings connected with an offence, any radioactive material, device or nuclear facility shall be returned after consultations with the State Parties concerned, in particular regarding modalities of return and storage, to the State Party to which it belonged or to a state party of which the natural or legal person owning such material, device or facility is a national or a resident, to the state party from whose territory it was stolen or otherwise unlawfully obtained. These provisions are designed to ensure the safe and orderly return of nuclear material to lawful custody, in accordance with international minimum standards.

The provisions of Article 18 on crisis and post-crisis situations acquire particular significance in the context of acts of nuclear terrorism. This is for the reason that in such a scenario of nuclear material falling into the possession of terrorist groups which commit an offence under the Convention, it is not every state which may be in a position to render assistance to the victim State. A non-nuclear state, for instance, may not have the technical capacity or the know-how to deal with such situation or crisis. In all probability, the victim State would have to seek assistance from those states which have necessary capability to deal with such crisis situations involving nuclear material.

The Convention further provides that, for the purposes of rendering assistance in crisis situations, the State Party in possession of the radioactive material, device or nuclear facility may request the assistance and cooperation of other State Parties and international organisations, in particular, the International Atomic Energy Agency.

State Parties and international organisations are encouraged to provide assistance, when such requests are made, to the maximum extent possible.

Thus the Convention provides a solid legal basis for mutual assistance and cooperation to deal with extraordinary situations that could arise in the context of acts of nuclear terrorism. From Sri Lanka's perspective, being situated in a region where there are a considerable number of nuclear reactors, the possibility of such situations arising cannot be overlooked.

Key negotiating issues
The negotiations on the Nuclear Terrorism Convention in the Ad-hoc Committee were stalled for a number of years owing to substantial differences which arose with regard to the scope of the draft Convention. These differences were dictated more by political considerations rather than by legal considerations. Some countries, particularly those belonging to the Non-Aligned Group (NAM), took up the position that since nuclear material, nuclear reactors etc are in the possession or control of States, unless the question of state responsibility for use of nuclear weapons or material is adequately addressed, the Convention would be lacking an important element which should form a core provision of the proposed legal regime. The West European Group, however, pointed out that this approach tended to overlook the fact that in the field of devising anti terrorism Conventions, the focus has always been the question of individual responsibility for terrorist activity, in this instance, the need to address the question of nuclear material in the possession of unlawful hands.

It was argued that a law enforcement treaty, providing for the extradition or prosecution of individuals for acts of terrorism, must of necessity, deal with this core aspect of individual criminal responsibility. Therefore the introduction of the nuclear disarmament element into the work of the Ad hoc Committee on international terrorism resulted in prolonged political debates and a shift away from the anti terrorism focus of the Convention.

The legal regime provided by the existing sectoral Conventions on suppression of terrorism has consistently focussed on the question of individual criminal responsibility, carefully excluding any questions of state responsibility which are regulated by other treaties in the field of disarmament, and also by general principles of international law.

The draft Nuclear Terrorism Convention was no exception. The debate on this issue of State Responsibility focussed on draft article 4 of the Convention which is essentially an "exclusion clause" or a "savings clause" which determines what is excluded by the Convention. It provides that :

"Nothing in the Convention shall affect other rights, obligations and responsibilities of states and individuals under international law, in particular the purpose and principles of the Charter of the United Nations and international humanitarian law".

It also clarifies that activities of armed forces during an armed conflict are governed by international humanitarian law and that activities of military forces of a State inasmuch as they are governed by other rules of international law and are not governed by the Convention. This was to make clear that the scope of the nuclear terrorism Convention is limited to acts of individuals and that acts of State actors continue to be governed by other applicable branches of international law.

»However, there was no agreement for a number of years on this until the emergence of a compromise proposal to bridge the gap the between the different approaches which had surfaced in the deliberations. The Mexican delegation formally proposed, an additional provision to article 4, to the effect that:

"This Convention does not address nor can it be interpreted as addressing in any way, the issue of the legality of the use or threat of use of nuclear weapons by states."

This proposal was clearly intended to delineate the sphere of application of the Convention. Number of delegations welcomed the Mexican proposal and took the view that this proposal went a long way in trying to bridge the differences on Article 4. However final agreement on the scope of the Convention remained elusive until, as a compromise text, the Bureau of the Ad-hoc Committee re-introduced the draft negotiated text, along with the Mexican text, as a revised composite text of the draft Nuclear Terrorism Convention.

When the Sixth (Legal) Committee of the United Nations met during the 59th Session of the UNGA in October 2004, there appeared to be a momentum being generated towards the adoption of the Convention based on the Bureau text. This text gradually attracted a broad degree of support among delegations as the basis for a possible compromise on the Convention. Further the improving political situation in the Middle East also appeared to facilitate the movement towards a consensus, devoid of political rhetoric, which had brought about sharp divisions within the Committee. Although the Sixth Committee was on the verge of finalising the text of the Convention, some delegations sought time to further consult with their capitals and took the view that the meeting of the Ad-hoc Committee on Terrorism scheduled to meet in March/April this year, would provide a good opportunity to finalise the text, after adequate reflection during the intervening inter-sessional period.

UN Ad-hoc Committee Sessions - March -April 2005 Preceding the Convening of the March-April 2005 Session of the UN Ad-hoc Committee, there were several crucial developments in the global scene which created a fresh momentum towards a consensus and had a positive impact on the negotiations in the Committee. In February 2005, US.

President, George W. Bush and Russian President Vladmir Putin, in a Joint Statement on Nuclear Security Cooperation called for the early adoption of Nuclear Terrorism Convention. The Report of the UN Secretary-General's High Level Panel on Threats, Challenges and Change and the Secretary-General's Report of 21 March 2005, entitled "In Larger Freedom: towards development, security and human rights for all" asserting that terrorism attacked the very values enshrined in the United Nations Charter, re-iterated the urgent need to conclude the Comprehensive Convention on Terrorism being negotiated in the Ad-hoc Committee, before the end of the Sixtieth Session of the General Assembly and to complete without delay, the draft Convention on the Suppression of Acts of Nuclear Terrorism.

When the UN Ad-hoc Committee met on 28th March 2005 one of the positive elements which had emerged was that delegations were no longer negotiating on the basis of the operative provisions of the Convention, in particular Article 4 determining the scope of application of the Convention which had hitherto been the major irritant, but instead were focussing their attention on the preambular part of the Convention. Although the preamble of a treaty constitute a non-binding part of the Convention which set out the background to the negotiations and the underlying rationale for its conclusion, often as a compromise, contentious proposals which do not find their way into the operative part are incorporated in the preamble.

Some of the proposals which were tabled at the March 2005 Session of the Ad-hoc Committee sought to inject into the negotiations certain elements which were politically sensitive and could have reopened a debate on disarmament issues, even though outside the operative part of the Convention. There was, for instance, a proposal re-iterating that the peaceful use of nuclear energy shall not be used as a cover for proliferation of nuclear weapons, which give rise to a counter proposal emphasising the right of States under the Nuclear non-Proliferation Treaty (NPT) to benefit from peaceful uses of nuclear energy. This was the delicate situation which confronted the Ad-hoc Committee at its recent session, which could have disturbed the careful balance that was sought to be achieved.

It is to the credit of all delegations that after intensive consultations among the sponsor delegations, all of them, after consulting capitals withdrew their respective proposals as a package, in favour of the Bureau Text of the Convention to enable the text of the Nuclear Terrorism Convention to be adopted by the Ad-hoc Committee on 1st April, 2005 after seven long years of negotiations. It was thereafter adopted by consensus by the United Nations General Assembly on Wednesday 13th April 2005 and will open for signature on 14th September 2005 at the high level summit, during the 60th Anniversary Session of the United Nations General Assembly.

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