ESRC Research Seminar Series:
New Approaches to WMD Proliferation
SPRU, Freeman Centre, Sussex, 8-9 January 2007
Parallel Enforcement Initiatives
for Chemical Weapons NonProliferation:
OPCW, PSI, 1540
Lisa Tabassi, Legal Officer
OPCW Technical Secretariat
[email protected]
ORGANISATION FOR THE PROHIBITION OF CHEMICAL WEAPONS
1
1993 Chemical Weapons
Convention
Strengths:
• ABSOLUTE BAN -- NO RESERVATIONS
– Reservations OK to the annexes, if consistent
• Created the OPCW and established a
verification regime to ensure compliance
(declarations + inspections)
• 181 States Parties in January 2007
2
The OPCW is not an
enforcement agency
3
The role of national law
enforcement agencies
and courts
Article VII(1)
… adopt the necessary measures to implement
(a) … including enacting penal legislation
(b) Not permit in any place under its control
any activity prohibited to a State Party under
this Convention....
= requires the State Party to enforce the CWC in its
jurisdiction
= national implementing legislation is needed to secure
compliance
5
Goal: No Safe Havens
6
181 States Parties;
14 States not party:
• AFRICA: Angola, Congo, Guinea-Bissau,
Somalia
• ASIA: North Korea, Myanmar
• LATIN AMERICA and the CARIBBEAN:
Bahamas, Barbados, Dominican Republic
• MIDDLE EAST: Egypt, Iraq, Israel,
Lebanon, Syria
7
What is a chemical weapon?
?
8
Article II definitions =
General Purpose Criterion
•
•
•
•
Chemical weapon
Toxic chemical
Precursor
Purposes not prohibited
9
General Obligations:
prohibitions, “measures”
and enforcement
Article I prohibitions
1. Each State Party to this Convention undertakes never
under any circumstances:
(a) To develop, produce, otherwise acquire, stockpile or
retain chemical weapons, or transfer, directly or
indirectly, chemical weapons to anyone;
(b) To use chemical weapons;
(c) To engage in any military preparations to use
chemical weapons;
(d) To assist, encourage or induce, in any way, anyone to
engage in any activity prohibited to a State Party under
this Convention. ...
5. To use riot control agents as a method of warfare.
11
Article VI(2) measures
(2)
Each State Party shall adopt the
necessary measures to ensure that toxic
chemicals and their precursors are only …
developed, produced, otherwise acquired,
retained, transferred or used within its
territory or in any other place under its
jurisdiction or control for purposes not
prohibited
12
Specific obligations:
create a National Authority, criminal
offences, import/export controls
Basic elements of CWC legislation
• establish a “National Authority” to coordinate
national implementation of the Convention
• create offences for the prohibitions
• restrict production in Schedule 1 chemicals
• establish export/import controls for Schedules 1, 2
and 3 chemicals
• make reporting of declarable activities mandatory
• penalise violations
• establish any necessary measures to enforce
the above
Import/export controls for
scheduled chemicals
•
•
•
•
SCHEDULE 1 - NO transfers to or from anyone in a State
not party; transfers to States Parties only for specific
purposes; NO retransfers
SCHEDULE 2 - NO transfers to or from anyone in a State
not party
SCHEDULE 3 - NO transfers to anyone in a State not
party without first obtaining an end-use certificate from the
“competent government authority”
REQUIRE EXPORTERS/IMPORTERS TO
REPORT DATA NEEDED FOR ANNUAL
DECLARATIONS to OPCW on transfers of Schedules 1,
2 & 3 chemicals for the past year
15
Limits of regulatory control:
Article XI(1) = balance
The provisions of this Convention shall
be implemented in a manner which
avoids hampering the economic ...
development of States Parties [and]
the international exchange of ...
chemicals ... for purposes not
prohibited” under the CWC
National Legislation
• Enables the State Party to declare regulated
activities.
• Enables the State Party to receive and/or
practice inspections.
• Enables the State Party to control and report
on import and export of regulated chemicals
• Enables the State Party to cooperate in the
implementation of the CWC
17
Reporting obligations
Reporting obligations:
Verification Annex, Parts VI-VIII
• Notification of Schedule 1 transfers
• Annual declaration of anticipated activities
–
–
production of Schedules 1 and 3 chemicals
production, processing, consumption of Schedule 2
• Annual declarations on previous year
activities
– Details on Schedule 1 chemical transfers
– Imports and exports of Schedules 2 and 3
chemicals (aggregate national data)
–
–
–
production of Schedules 1 and 3 chemicals
production, processing, consumption of Schedule 2
update the list of other chemical production facilities
• submit information on the national protective programme
19
Make reporting to the National
Authority a legal obligation
• Use legislation to identify declarable activities:
require reporting to the National Authority and
empower the National Authority to seek additional
information when necessary
• penalise failure to report, false declarations and
failure to keep records
• penalties should be effective, proportionate and
dissuasive
Key to smooth
inspections: legislation
Legislation to cover OPCW
inspections
• ACCESS to the facilities or
plants inspectable under the
Convention is an essential
requirement.
22
National inspections
• Allows the National Authority to
verify the information necessary
for declarations or to follow-up
OPCW requests for clarification
of declarations
23
Confidentiality protection
• confidentiality of information
reported to the National
Authority for declarations or
received in the course of
inspections
• confidentiality of information
received from the OPCW
24
MAKING
IT
WORK
25
Primary legislation
Primary legislation typically covers:
• Definitions
• Composition, mandate, and powers of National
Authority
• Prohibitions
• Penalties for violations
• Extraterritorial application to nationals
• Requirement to submit data relevant for
declarations
• Requirement to cooperate with inspections
• Requirement to protect confidential information
26
Subsidiary regulations
Regulations typically cover:
• Licensing of production facilities
• Import/export controls
• Procedures and forms for submitting declarations
related data
• Thresholds
• Exceptions
• Deadlines
• Procedures for inspections
27
Purpose of regulations:
Enable:
• The National Authority to collect all the
information it needs to compile and submit to
the OPCW accurate and timely declarations as
required by the Convention
• Prevention or detection of illegal trade or
transfers prohibited by the Convention
•
•
Enforce decisions of the OPCW Conference of the States Parties
relevant to national implementation
OPCW inspections to be conducted in accordance with the
Convention
28
Import/export controls:
POLICY CONSIDERATIONS
•
•
•
•
•
•
•
•
Who examines the End-Use Certificates and do they
do follow-up?
Establish import-export licensing system?
Issue open general licenses?
Establish import-export permit system?
Single use or multiple use?
Monitor in-country movement of imports of S1?
How to monitor S1 maximum national holding of 1
tonne?
Prohibit all imports and exports of scheduled
chemicals except with permission of the Minister? 29
The role of Customs
Collaboration between Customs
and the National Authority
• National Authority does all data collection
based on permits issued and reports from
permit holders?
• Customs uses CAS numbers or HS codes to
compile data on ACTUAL imports and
ACTUAL exports and provides data to the
National Authority?
31
Specific obligations:
identifying scheduled
chemicals
Identification of scheduled chemicals
• Integration of CWC schedules into the national list of
controlled goods
• CWC schedules identify chemicals by CAS (Chemical
Abstracts Services) number
• WCO recommendation on HS codes (Harmonised
System): add national digits for scheduled chemicals
• Yet to be discussed: uniform identification to reduce
discrepancies in declarations to the OPCW
33
TRAINING:
Cooperation
with the
OPCW and
States Parties
34
Implementation
support by the OPCW or States Parties
Support to
draft primary
Legislation
(National
Law)
Support /
training
for Customs
Officers
Support to
draft
regulations
and
procedures
Support for
outreach/
awareness
raising to
industry and
others
Support to
establish/improve/
train Licensing
Authorities/
Officers in the
enforcement of laws
and regulations
Support/train
ing
for the
Judicial
Sector
Possible
areas of
Cooperation
35
3
2003 Rev Con & the Action Plan
•
•
•
•
•
Required all States Parties to establish a National
Authority and adopt legislation (measures) by
November 2005
Follow up to the Action Plan adopted
November 2005
Sustaining follow-up to the Action Plan adopted
December 2006
Proactive assistance by States Parties and the
Technical Secretariat
Significant voluntary contributions – SPs & EU
36
Results?
2005
2006
National
Authority
Some legislation
84%
95%
60%
62%
Comprehensive
legislation
Drafting
legislation
34%
40%
92
109
37
Proliferation Security
Initiative (PSI)
Post 11 September: multilateral,
regional, plurilateral and unilateral
initiatives
•
UN resolutions
IMO and ILO Convention amendments
ICAO
WCO integrated supply chain management
EU Strategy against WMD proliferation
NATO, OAS, ASEAN
Australia Group
G-8 Global Partnership
•
PSI
•
National laws
•
•
•
•
•
•
•
39
PSI
•
•
•
Announced by US in 2003
Initially 11 participating States - now 15 + 60
cooperating ad hoc
Statement of Interdiction Principles: “undertake
effective measures, either alone or in concert with
other States, for interdicting the transfer or
transport of WMD from States or non State
actors of proliferation concern (States or entities
identified by PSI participants to be of proliferation
concern because of efforts to acquire WMD or
because of transfer activity)
40
Jurisdictional problems
1958 & 1982 LOS Conventions + CIL:
• National jurisdiction - internal waters & territorial sea
• Right of innocent passage in territorial waters
• Right of transit passage in international straits
• Freedom of the high seas
• Jurisdiction of the Flag State
• Boarding foreign ships without authority is the use of
force (act of war)
• Warships enjoy right of “visit” under certain conditions
or when power is derived by treaty
Example: 2002: DPRK’s unflagged So San – 15 Scud
missiles & conventional warheads hidden under 40
sacks of cement not seized by Spain & US
41
Ship boarding agreements
Concluded between the US and:
• Liberia (2004)
• Panama (2004)
• Marshall Islands (2004)
• Cyprus (2005)
• Croatia (2005)
• Belize (2005)
Provides authority to board vessels suspected of
carrying WMD + procedures to board and
search. Flag State has 2-4 hours to object. 42
Success?
• 2005: Bilateral cooperation with several
governments under the Proliferation Security
Initiative prevented two shipments to
Democratic People’s Republic of Korea of
materials used in making chemical weapons
• 2006: Poland’s Security Policy Department has
revealed that under the Proliferation Security
Initiative (PSI) 2003-2006, 12 illegal shipments of
nuclear, chemical or biological weapons related
substances have been seized near Poland. Could
have been intercepted without PSI, however, PSI
“creates an exchange of information between
countries that makes it significantly easier and
quicker to undertake operations.”
Success?
CRS Report to US Congress:
• 2004-2005: 11 WMD-related transfers
halted
• 2005-2006: 24+ transfers halted
No assessment of how these statistics
compare with past efforts
Serious questions of legitimacy prior to
April 2004
UN Security Council
Resolution 1540
2004 UN Security Council res. 1540
Chapter VII resolution adopted April 2004. All UN members
are required to:
• Refrain from supporting WMD proliferation among non
State actors
• adopt laws criminalising the proliferation of weapons of mass
destruction (nuclear, chemical and biological);
• adopt laws preventing non-state actors from manufacturing,
acquiring or trafficking in nuclear, biological or chemical
weapons, the materials to make them, and the delivery systems;
• take measures to secure all banned weapons;
• develop border controls and law enforcement to detect,
deter, prevent and combat the illicit trafficking and
brokering in such items;
• report to the UN within 6 months on compliance
Results
2004: 1540 Committee established by 1540
resolution
• Initial reports received from 133 countries
• Reports reviewed against a matrix and requests
for clarification were sent to the responding
State
• Reports available on UN website
Results
2006: UNSC resolution 1673 recognised that this is a
long term effort and:
• renewed Committee mandate to 2008
• created 1540 Committee work programme of
outreach, dialogue, assistance and cooperation,
especially to achieve paras. 1, 2, 3 of 1540 (no support;
legislation; measures, including accountability, physical
protection, border controls & law enforcement, export
and transshipment controls)
• Committee to explore with States & organisations
(international, regional, subregional) lessons learned
and programmes to facilitate 1540 results
What about State actors?
UNSC resolution 1695 (Chapter VII)
• DPRK to halt its WMD programmes
• All Member States to prevent, through its
territory or by its nationals, the direct or
indirect supply, sale or transfer to the DPRK
items which could contribute to DPRK’s
WMD programmes
• DPRK shall cease exporting such items
• All Member States shall inspect DPRK cargo,
consistent with national legislation &
international law
Conflict of treaties
• Article 103 of the Charter of the United
Nations: In the case of conflict, obligations
under the Charter prevail over obligations
under other international agreements
• UN Security Council resolutions adopted under
Chapter VII are binding upon all Member
States
Actual cases reported
in the press
Chemicals trader convicted of war
crimes
• Netherlands: December 2005. Frans van Anraat age 63,
a Dutch businessman, was convicted of complicity in war
crimes because he knew that 1100 tons of chemicals he
sold to Iraq in the 1980’s could be used to make chemical
weapons. He was acquitted of the charge of complicity in
genocide, because it could not be proven that he knew
the chemicals would be used for genocide -- the
chemicals were shipped to Iraq before the widespread
press reports of gas attacks on Kurdish villages, killing
5000+ persons in March 1988.
• Sentenced to 15 years – the maximum sentence – judges
said that “the crimes are of such a grave nature that even
the maximum sentence cannot do them justice.”
Chemicals trader (continued)
• Van Anraat case: First time in the Netherlands that the supplier
of chemicals had been charged with genocide and convicted of war
crimes under a new mix of national and international law. Mr van
Anraat set up layers of companies to try to cover up his trade with
Iraq. He acted as a middleman and shipped chemicals from
Japanese and United States chemicals producers via countries
including Italy, Switzerland and Singapore, using labels such as
“flame retardant” and making false statements on end-user
certificates. The chemicals could be used to make mustard and
nerve gases. He said he thought they would be used in the textile
industry. A Japanese business associate testified that van Anraat
was warned about the potentially use to make chemical weapons.
In the past, violation of export controls would have been dealt with
as an economic crime. This sends an important signal to suppliers
and traders that they, too, can be prosecuted and held accountable
for war crimes.
•
First time a court has ruled that the attack on Halabja was
genocide, as part of a broader campaign against Iraqi Kurds.
Chemical Disarmament Quarterly :
“Lessons Learned: Chemicals
Trader Convicted of War
Crimes”
December 2006 – available at www.opcw.org
Suspected chemical weapons
production
• United Kingdom, April 2005: Trials ended in the 2004 case
which started with 5 persons indicted for production of
chemical weapons (ricin – Schedule 1 chemical) in a London
apartment. Castor beans (ricin), cherry & apple seeds (cyanide)
and recipes for making ricin, cyanide and botulinum were found
in the apartment. Tests for ricin were inconclusive and chemical
weapons charges were dropped. Prosecution said plan was to
cover doors and car door handles with ricin and other poisons.
One defendant was convicted of murder and conspiracy to
commit a public nuisance by the use of poisons and explosives
to cause disruption, fear or injury. Sentence: 17 years. 8 others
cleared of conspiracy. Charges against 4 others dropped.
Chemical weapons production by
terrorists
France 2002
• Plans to commit terrorist attacks in Paris, including
chemical weapons attacks, were interrupted
• The accused had been producing ricin in his parents’
spare bedroom
• Not all the jars of ricin have been found yet
• 25 persons were convicted, including the producer
of the ricin who was sentenced to 10 years in prison
56
Chemical weapons production by
terrorists
Jordan 2004
• Plans to attack Jordanian government buildings and the
United States Embassy were interrupted by security forces
• Trucks carrying explosives and a mix of toxic chemicals were
intended to create a toxic cloud
• Chemical were purchased on the local market
• February 2006: nine persons were convicted and sentenced
to death for planning a chemical weapons attack
57
Export control violations
• South Africa: February 2005. A company was fined
100,000 rand (US$ 15,000) for exporting dimethylamine
(not a scheduled chemical) without an export permit, in
violation of the Non-Proliferation of Weapons of Mass
Destruction Act. Sentence was light because chemicals
were exported “in the ordinary course of business to
commercial end-users, not to military or terrorist entity
for use as chemical weapons agent.”
• United States, June 2005. Company fined US$ 700,000
for selling without an export license equipment which can
be used to make chemical weapons. The company
shipped special pumps 26 times, 22 times knowing that it
was a violation and made false statements on export
documents 23 times.
Export control violations
Thailand 2005
• Manufacturer in Republic of Korea exported
70 tons of sodium cyanide to Thailand.
Republic of Korea was warned by another
State Party that some of the chemicals were
intended to be re-exported to a State not
party
• The shipment was seized
Robbery using chemical weapons
China 2005
• 2 men released 4 bottles of hydrogen cyanide
in order to commit a robbery. 7 persons died
(including the robbers)
• 2006: The two surviving accomplices were
convicted and executed for killing with
poison gas
60
Chemical Disarmament Quarterly :
“Enforcement of the Chemical
Weapons Convention: Actual
Investigations and Prosecutions of
Offences”
December 2004 – available at www.opcw.org
Cooperation and
legal assistance in
criminal matters
“Cooperation and legal assistance”
CWC Article VII(2):
Each State Party shall
cooperate with other States Parties and
2.
afford the appropriate form of legal assistance to
facilitate the implementation of the obligations
under paragraph 1 [i.e., prohibitions, penal
provisions, extraterritorial application].
Aims of cooperation
• Investigating and prosecuting
violations
• Preventing violations: exchange of
information on suspicious transfers
–
–
–
National Authorities
Customs
Police
Examples
• 1995 Tokyo subway incident
–
Domestic event?
•
•
•
•
–
Japanese terrorist group
Chemical weapons were produced in Japan
Used in Japanese subway
All victims were Japanese
International cooperation with Japanese
police and prosecutor in the investigation
and trial: funds, chemicals and equipment
were imported
Examples
• 2005 van Anraat case
–
–
Japan, United Kingdom and United States
provided documentary evidence. Some of
the documentary evidence had been seized
in the 1980’s by Italy and Switzerland at
the request of the United States
Witness testimony was obtained in Japan,
Iraq and the Islamic Republic of Iran
Examples
• Mexico/Spain, 2004: Extradition
proceedings in Mexico regarding 6 Spaniards
and 3 Mexicans. Spain alleged that the
accused were involved in a Spanish terrorist
group. Search of the house uncovered
information on how to make chemical
weapons
Legal basis for cooperation
• Bilateral cooperation with States Parties
where agreements exist or on an ad hoc basis,
particularly neighbouring states and states in
the region, through established channels
• Cooperation between National Authorities
and enforcement agencies emerging through
OPCW activities and CWC implementation
• Cooperation under informal arrangements:
PSI, Australia Group
68
Copy of
published
proceedings
available, upon
request, from the
OPCW
Technical
Secretariat
([email protected])
69
The Bottom Line
The Bottom Line
• If someone violates the CWC,
can you:
– Identify that a violation took place?
– Apprehend the offender?
– Prosecute the accused?
– Punish the convicted adequately?
71
The significance of
regulations & measures
Without the promulgation of
subsidiary regulations and effective
administrative measures and policy
to enforce them, the treaty
obligations and the parliamentary
acts to implement them are only
paper.
72
The legal basis for CW
non proliferation efforts
•
•
CWC Article VII (enforceable against States & NSA)
•
Para 1(a): criminalise proihibited activities
•
Para 1(b): enforce
•
Para 2: cooperate with other States Parties in
enforcement
1540 (enforceable against NSA)
•
Para 1: don’t support
•
Para 2: criminalise proliferation of WMD
73
•
Para 3: build capacity for controls and enforcement
The rule of law
•
Principle of legality
•
•
•
Nullum crimen sine lege
Nulla poena sine lege
Good governance
•
•
Eliminate corruption otherwise
regulations can’t be enforced
Eliminate discrimination
74
Enhancing national security
• The CWC enhances international humanitarian law
because it eliminates one category of weapon of
mass destruction.
• However, the primary motive for each country to join
the CWC is its own self interest in its own national
security. Joining the CWC means that the State
must pass a network of laws which act as a deterrent
for any person who would wish to engage in
chemical terrorism or other prohibited uses. These
laws serve to prevent and deter such acts and ensure
that chemicals will only be used for peaceful
purposes.
Thank you!
76