Background: UNODC’s Mandate on the Relevant Legal Instruments
The UN Office on Drugs and Crime (UNODC) is entrusted by the General Assembly of the United Nations with promoting the ratification and effective implementation of the international conventions and protocols related to counterterrorism among member states. UNODC efforts help strengthen the capacity of national criminal-justice systems to prevent and counter terrorism, in compliance with the principles of the rule of law and with due respect for human rights. Seven of these international legal instruments deal, in varying degrees, with the criminalization of certain acts by non-state actors involving chemical, biological, and nuclear weapons or nuclear or other radioactive materials. These acts range from the illicit possession, handling, and use of nuclear material to discharging chemical, biological, radiological, or nuclear (CBRN) weapons from or against ships or aircraft, to nuclear smuggling. The seven international legal instruments include the International Convention for the Suppression of Acts of Nuclear Terrorism, the Convention on the Physical Protection of Nuclear Material (CPPNM) and its 2005 Amendment, and the International Convention for the Suppression of Terrorist Bombings, plus two maritime instruments adopted in 2005 and one on civil aviation that was adopted in 2010.1
It should be highlighted that the abovementioned instruments do not make terrorist motivation2 a condito sine qua non for most of the abovementioned acts to be criminalized under national law. In some cases, it is an element of the offense, and in others, the possibility is open to the national legislator to include such intentions as an aggravating circumstance.
By obliging states party to the aforementioned instruments to criminalize certain acts related to those items and certain related materials, these instruments assist those states in fulfilling several of their obligations under UN Security Council resolution 1540 (2004) (UNSCR 1540). More specifically, these obligations are found in operative paragraph 2 of UNSCR 1540, which requires states to “adopt and enforce appropriate effective laws which prohibit any non-State actor to manufacture, acquire, possess, develop, transport, transfer or use nuclear, chemical or biological 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 an accomplice, assist or finance them.”
Additionally, the CPPNM and its 2005 Amendment require states to protect nuclear material at certain levels specified therein. It is worth noting that operative paragraph 3 of UNSCR 1540 requires states, among other things, to “develop and maintain appropriate effective physical protection measures.”
Hence, the relevant international legal instruments against terrorism are indeed useful for states to meet several of their obligations under UNSCR 1540. They also require states to criminalize attempts, participation, and several forms of assistance, which are also requirements of UNSCR 1540. As for the obligation enshrined in the resolution to adopt and enforce laws prohibiting non-state actors from financing the acts described, the International Convention for the Suppression of the Financing of Terrorism is also an instrument of key importance for states.
UNODC’s Technical Assistance
States are not alone in the endeavor of incorporating and implementing international legal instruments against terrorism at the national level. What assistance can UNODC provide?
UNODC offers legal technical assistance and tailored capacity-building to member states that request it. It helps with ratification and full implementation of these instruments through a variety of means, including:
- Awareness-raising and capacity-building on the provisions of the instruments
- Review or assistance in drafting national legislation
- Training of criminal-justice and law-enforcement officials in the effective implementation of the instruments (investigation, prosecution. and adjudication of cases)
- Enhancing international cooperation in criminal matters related to CBRN terrorism
The key role played by UNODC in furnishing legal technical assistance to member states in order to prevent nuclear and radiological terrorism has been recognized in a variety of forums. In 2012, for example, the UN High Level Meeting on Countering Nuclear Terrorism with a Special Focus on Strengthening the Legal Framework recognized the UNODC’s work—in particular that of its Terrorism Prevention Branch’s Global Project on Strengthening the Legal Regime against Terrorism—in promoting the ratification and the full implementation of the international legal instruments dealing with nuclear terrorism and nuclear security. In particular, participants welcomed UNODC’s ongoing efforts to assist member states that request help through this process and invited member states to avail themselves of the UNODC’s successful and long-established technical legal assistance program.
In 2009, the Global Initiative to Combat Nuclear Terrorism (GICNT) granted UNODC official observer status, emphasizing that “UNODC’s commendable work in addressing issues related to counter terrorism, including nuclear terrorism, has already had a positive impact in promoting implementation of the universal legal framework against terrorism, including the Convention on the Physical Protection of Nuclear Material and its 2005 Amendment, United Nations Security Council resolutions 1373 and 1540 and the International Convention for the Suppression of Acts of Nuclear Terrorism.” UNODC participates regularly, and as appropriate for its capacity as an official observer, in activities of the GICNT.
In order to provide an idea of the work conducted by UNODC with respect to the 18 international legal instruments against terrorism, it can be highlighted that since 2003, when the Terrorism Prevention Branch of UNODC began its legal technical assistance, such assistance has been provided to 169 countries. Its efforts have resulted in an estimated 628 new ratifications of the international legal instruments, 113 new or revised pieces of counterterrorist legislation developed by member states, and over 18,500 national criminal-justice officials trained. In 2013 alone, 83 countries were assisted through national or regional activities, resulting in 24 new ratifications and over 2,500 officials trained.
Addressing the Challenges
Legislative incorporation of the international conventions and protocols may pose some difficulties for member states due to factors such as the complexity of some of the issues covered, as well as differences in scope and definitions in some conventions. Accordingly, model legislative provisions for the implementation of the criminalization provisions of the International Convention for the Suppression of Acts of Nuclear Terrorism, the Convention on the Physical Protection of Nuclear Material, and the CPPNM’s 2005 Amendment were jointly developed by UNODC and the International Atomic Energy Agency (IAEA) in 2009. Additionally, UNODC has, over the years, developed model legislative provisions for the legislative incorporation of the criminalization provisions of the international legal instruments against terrorism, which also include those dealing with CBRN issues.
UNODC works to raise awareness regarding why universal adoption of the international legal instruments against terrorism is important and beneficial for member states, apart from being obligatory under UN Security Council resolution 1373 (2001). In some cases, this may not be inmediately apparent to states, given the scope of some of the instruments. A member state may not recognize the benefits that might result from ratifying and incorporating into national law a particular treaty. As an example, a country that does not have nuclear material could believe that there is no need to ratify and implement the treaties related to nuclear terrorism. However, this is not the case. If nuclear material were smuggled into its territory, or if a citizen were the victim of a nuclear terrorist attack abroad, being a party to the international legal instruments and having the relevant domestic legislation in place would enable the country to effectively prosecute offenders for smuggling nuclear material, or to claim jurisdiction over the terrorist act involving its citizen.
This and other issues will be raised in a tool that UNODC will develop shortly. More specifically, this tool will be devoted to the international legal framework against CBRN terrorism and will aim at assisting states with the ratification and legislative implementation of that framework.
Cooperation with the 1540 Committee and Other Entities
In carrying out activities relevant to promoting the international legal framework against CBRN terrorism, UNODC works closely with relevant international and regional organizations and entities, including the Counter-Terrorism Implementation Task Force, the African Union (AU), the Biological Weapons Convention Implementation Support Unit, the Committee established pursuant to UNSCR 1540 (2004) and its Group of Experts, the European Union, the IAEA, the International Civil Aviation Organization, the International Maritime Organization, the Organization for the Prohibition of Chemical Weapons, and the Organization for Security and Cooperation in Europe. UNODC contributes to these bodies’ activities as appropriate.
Examples of recent relevant activities to which UNODC has contributed include:
- Two Regional Workshops on the Implementation of UNSCR 1540 (2004), organized by the UN Office for Disarmament Affairs (UNODA) in Addis Ababa, Ethiopia, in December 2013, and in Astana, Kazakhstan, in March 2014
- Two IAEA Regional Workshops on Facilitating Adherence to and Implementation of the 2005 Amendment to the CPPNM, in Brussels, Belgium, November 2013, and in Mexico City, Mexico, in April 2014
Activities organized by UNODC include:
- Two Workshops on the 2005 Amendment to the Convention on the Physical Protection of Nuclear Material and the 2005 International Convention for the Suppression of Acts of Nuclear Terrorism for selected African states, held, respectively, in Dakar, Senegal, in June 2013 and in Nairobi, Kenya, in October 2013. Both events benefited from participation by the IAEA, the 1540 Committee Group of Experts, the AU, and civil society. The United Kingdom contributed to both events in its capacity as a donor for the project and also through providing expertise.
- A Workshop on Chemical, Biological, Radiological and Nuclear (CBRN) and Maritime Terrorism for ASEAN countries, held in Bangkok, Thailand, in December 2012. The 1540 Committee Group of Experts, the IAEA, and UNODC participated.
It should also be noted that UNODC has positively responded to the request from the 1540 Committee to be a provider of assistance, within its mandate, to states requesting relevant assistance to the Committee and has already worked with several member states in this regard.
The UNODC-WCO Container Control Program
Another requirement of UNSCR 1540 is that states “develop and maintain appropriate effective border controls and law enforcement efforts to detect, deter, prevent and combat, including through international cooperation when necessary, the illicit trafficking and brokering” of 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, and that they “establish, develop, review and maintain appropriate effective national export and trans-shipment controls over such items, including appropriate laws and regulations to control export, transit, trans-shipment and re-export.”
UNODC’s Container Control Program (CCP) may be of assistance to states in this regard. Jointly developed by UNODC and the World Customs Organization (WCO), the CCP has assisted 25 countries with enhancing the security of cargo containers at sea and land borders since its inception in 2006. It has plans to expand to 25 more countries in the near future. Containers are used for shipments of all types of legal goods, but also for illegal goods such as drugs, arms, and chemical, nuclear, and biological materials. Yet fewer than two percent of cargoes are subject to in-depth inspection, due to high volume and the speed of handling. The CCP aims at preventing illicit trafficking and container crime while also facilitating legitimate trade and increasing state revenues.
More particularly, the CCP assists states in establishing dedicated container profiling units (port control units, or PCUs). PCUs comprise law-enforcement officers equipped and trained for this mission and stationed at selected sea and dry ports. They are set to play an important role in national security schemes, as they have the potential to profile containers without unnecessary hindrance to the flow of legitimate trade.
Specifically relevant to UNSCR 1540 is the Advanced Interdiction Training (AIT) module in the context of the CCP. AIT addresses the control of imports, exports, or transit of commodities subject to licensing or authorization (Strategic Trade Controls (STC) on weapons of mass destruction, dual-use goods, and CBRN materials). In order to enhance the capacity of the PCUs in the sphere of risk profiling for trafficking of these items, the training includes activities for building up basic profiling capacity, knowledge of controlled commodities, specific regulations applicable to the international trade in these commodities, and analysis of fraud patterns. The first AIT training was held in December 2011 in the port of Rotterdam, The Netherlands for advanced PCUs from Ecuador, Ghana, Panama, Pakistan, and Senegal. It was delivered by experienced profilers and CBRN/STC trainers. The three-week curriculum, based on a UNODC-WCO Handbook, includes one week on STC identification and profiling, one week on chemical controls, and one week of follow-up/practical training, with the option of adding specialized training and providing post-training support to units. Further AIT workshops were held for the PCUs from Benin, Ghana, Senegal, and Togo in Tema, Ghana, in February 2012 and in Dakar, Senegal, in November 2012. In 2013, AIT workshops took place for the Panamanian port control units in Panama City, and for Pakistani port control units in Ankara, Turkey. An ASEAN Regional Forum Workshop on Countering Illicit Trafficking of CBRN Materials was organized by Canada and UNODC. It was held in Manila, the Philippines, in November 2013.
In 2006 the General Assembly approved a United Nations Global Counter-Terrorism Strategy.3 The Assembly recognized the synergies among the different instruments and encouraged UNODC to step up technical assistance to states, upon request, to facilitate implementation of the international conventions and protocols related to the prevention and suppression of terrorism and relevant UN resolutions.
In the context of its longstanding and successful technical legal assistance program, UNODC is increasingly devoting resources to assist member states in ratifying and implementing the CBRN-relevant legal instruments. It thereby also assists them in fulfilling, as we have seen, several of their obligations under UNSCR 1540. In doing so, it will continue to strengthen and expand its partnerships with relevant entities in a synergetic manner in order to maximize results and better serve member states. New tools such as the upcoming publication on the international legal framework against CBRN terrorism will also contribute to these efforts.
The work of the Container Control Program will be strengthened further. Following the success of initial training activities, and in light of the keen awareness and interest shown by the PCUs, and if donor funding permits, AIT will be implemented on a larger scale within the CCP.
Through all these efforts, UNODC will contribute not only to helping states meet their obligations under UNSCR 1540 but to making the world a more secure place.
The views expressed in this article are those of the author and do not necessarily represent those of the UN Office on Drugs and Crime.
- 2005 International Convention for the Suppression of Acts of Nuclear Terrorism, 1980 Convention on the Physical Protection of Nuclear Material and its 2005 Amendment, the 1997 International Convention for the Suppression of Terrorist Bombings, 2005 Protocol to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 2005 Protocol to the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms located on the Continental Shelf and 2010 Convention on the Suppression of Unlawful Acts relating to International Civil Aviation.
- Indeed, in certain cases, the conventions and protocols require that for an act to be criminalized it be carried out, inter alia, “with the he purpose of intimidating a population, or compelling a government or an international organization to do or to abstain from doing any act.”
- A/RES/60/288 of September 8, 2006 on The United Nations Global Counter-Terrorism Strategy.