The Protection of Nuclear Material and Nuclear Facilities

The menace arising from the possibility of obtaining and using by ter-rorist organizations of nuclear material triggered the development of an international agreement laying down the policy for handling such mate-rial during its use, storage and transport. The Convention on the Physical Protection of Nuclear Material, opened for signature at Vienna and at New York on 3 March 1980, (hereinafter: the Vienna Convention)⁴¹ was drawn up under the auspices of the International Atomic Energy Agency (IAEA).

Besides the provisions enforcing the standards of transport of nuclear ma-terial or cooperation in case of the loss of control of them, the convention required the state parties to recognise in their domestic legislation the fol- lowing offences as punishable: fraudulent obtaining, theft and embezzle-ment of nuclear material, demand for nuclear material by threat or use of force and a threat of its use (Article 7).

During the 4-8 July 2005 Vienna Diplomatic Conference, its content was amended. Its title was modified: the Convention on the Physical Pro-tection of Nuclear Material and Nuclear Facilities.⁴² An extensive and de-tailed record of acts that should be criminalized is given in Article 7(1) of the Vienna Convention, supplemented by the 2005 amendment. It covers the intentional commission of:

(a) an act without lawful authority which constitutes the receipt, pos-session, use, transfer, alteration, disposal or dispersal of nuclear material

41  The convention was ratified by 137 states. Information on the ratification of the conven-tions is provided after the official website of the IAEA: www.iaea.org/Publications/Documents/

Conventions/cppnm.html

42 Cf. Amendment to the Convention on the Physical Protection of Nuclear Material (GOV/

INF/2005/10-GC(49)/INF/6).

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and which causes or is likely to cause death or serious injury to any person or substantial damage to property or to the environment;

(b) a theft or robbery of nuclear material;

(c) an embezzlement or fraudulent obtaining of nuclear material;

(d) an act which constitutes the carrying, sending, or moving of nucle-ar material into or out of a state without lawful authority;

(e) an act directed against a nuclear facility, or an act interfering with the operation of a nuclear facility, where the offender intentionally causes, or where he knows that the act is likely to cause, death or serious injury to any person or substantial damage to property or to the environment by exposure to radiation or release of radioactive substances, unless the act is undertaken in conformity with the national law of the state in the territory of which the nuclear facility is situated;

(f) an act constituting a demand for nuclear material by threat or use of force or by any other form of intimidation;

(g) a threat:

   (i) to use nuclear material to cause death or serious injury to any person or substantial damage to property or to the environment or to com-mit the offence described in sub-paragraph (e);

   (ii) to commit an offence described in sub-paragraphs (b) and (e) in order to compel a natural or legal person, international organization or state to do or to refrain from doing any act;

(h) an attempt to commit any offence described in sub-paragraphs (a) to (e);

(i) an act which constitutes participation in any offence described in sub-paragraphs (a) to (h);

(j) an act of any person who organizes or directs others to commit an offence described in sub-paragraphs (a) to (h);

(k) an act, which contributes to the commission of any offence, de-scribed in sub-paragraphs (a) to (h) 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 crim-inal purpose of the group, where such activity or purpose involves the commission of an offence described in sub-paragraphs (a) to (g); or

   (ii) be made in the knowledge of the intention of the group to com-mit an offence described in sub-paragraphs (a) to (g).

Each state was also obliged to make the listed offences punishable by taking into account their grave nature (Article 7(2) of the Vienna Conven-tion).

 Sectoral Conventions 3.6. The Significance of Sectoral Conventions

When assessing the solutions for the suppression of terrorism con- tained in the sectoral conventions, it must be borne in mind that their de-velopment was marked by political and ideological rivalry between three blocks of states: “Western,” “Eastern” and “developing” ones. A serious dissent was registered when discussing many issues, such as the problem of state terrorism and the obligation to extradite the offender; yet, of key importance was diverse interpretation of acts of violence committed dur-ing the struggle for national liberation.

The inability to develop a consensus, especially in that last issue, shift- ed the focus to the proposal of typifying prohibited acts regarded as ter- rorist methods of pursuing criminal conduct, and thus bypassing the mo-tivation aspect typifying any perpetrator. Consequently, no offence criteria were identified that would represent the essence of terrorism per se. There-fore, the delineated area of international cooperation also covered crimes having no connection with political activities, but carried out for material gain or out of revenge. The only restriction was the requirement to identify a foreign (international) component in the perpetrator’s deed.

Among the legal standards laid down in the sectoral conventions, priority is given to the obligation to criminalize the relevant offences in domestic legislations. They were not, however, classified as crimes under international law, such as crimes against humanity or war crimes. Their defining provisions are not self-executing⁴³ but require corresponding amendments to be made in the domestic penal law. Still, due to the large number of ratifications, they embodied universal attributes and exert a material influence over the development of common practice in interna-tional law.⁴⁴

The literature on the subject points out that the provisions implement-ing the principle aut dedere aut iudicare⁴⁵ assume a key role among the counter-terrorism measures agreed in the sectoral conventions. However, they do not impose the obligation to extradite the offender, although they

43 Cf. Röben, V. „The Role of International Conventions and General International Law in the Fight against International Terrorism,” in: Terrorism as a Challenge for National and Interna-tional Law: Security versus Liberty? Walter, C., Vöneky, S., Röben, V., Schorkopf, F., Springer 2004, p. 797.

44 Cf. Saul, B. Defining, pp. 140-142.

45 Murphy, J. F. Punishing International Terrorists: The Legal Framework for Policy Initiatives, Totowa 1985, p. 12.

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embrace a number of provisions expediting the effective handling of such a procedure.