Wilton Park 2009: Penalizing Nuclear Trafficking

The Project on Nonproliferation Policy and Law sponsored an international conference on penalizing traffickers of sensitive nuclear weapons technology and components at Wilton Park in the United Kingdom from October 22-25, 2009.

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The conference highlighted the threat to international security posed by the proliferation of nuclear technology to rogue states and non-state actors, which has in large part been facilitated by the illicit activities of private nuclear smuggling operations, most famously the network of traffickers spearheaded by Pakistani scientist, Abdul Qadeer Khan.

The conference focused on two legal mechanisms for prosecuting nuclear smugglers: traditional criminal prosecution and the innovative use of civil litigation/sanctions.  The primary mechanism for punishing traffickers of restricted nuclear technology has been standard criminal prosecution.  Unfortunately, prosecution efforts around the globe have been plagued by legal challenges, including obtaining legal assistance from multiple jurisdictions, inadequate or non-existent nonproliferation statutes, presentation of classified evidence in court, and obtaining jurisdiction over defendents and witnesses through extradition.  With the goal of improving the success rate of such prosecutions, the conference opened with an analysis of these challenges as well as recommendations for overcoming them in the future.  Some solutions proposed included revisions to and standardization of nonproliferation statutes worldwide, amendments to extradition treaties, evidentiary procedure changes for nuclear trafficking prosecutions, and new avenues for international legal cooperation, envisioning a potential role for organizations such as the IAEA.

In addition to improving the quality of criminal prosecutions, the second half of the conference focused on the use of civil litigation and non-criminal sanctions to deter and punish nuclear traffickers.  Civil mechanisms can serve as an alternative means of punishment when criminal prosecutions fail, can be used in conjunction with traditional prosecution efforts to increase penalties against nuclear traffickers, or can be used to avoid the potential shortcomings of criminal prosecution altogether.

An exploration of avenues for civil litigation included an analysis of what causes of action might be available in courts to bring suit against nuclear smugglers.  Conference participants highlighted that where no victims of nuclear attack exist, suits could be brought by supplier companies whose goods are illegally diverted against nuclear traffickers either for breach of contract for failing to observe export control restrictions, for fraud by concealing the actual end-user, for damage to corporate reputation by deceitfully involving the supplier in illicit activity which is made public, and for theft of trade secrets where proprietary designs or materials are illicitly diverted.  Furthermore, action might also be taken against financial institutions, which facilitate the operations of smuggling networks by supporting their financial transactions.

In addition to civil litigation, governments can also impose a wide range of non-criminal sanctions against suspected nuclear smugglers to punish them for illicit behavior and prevent them from engaging in further criminal activity.  Sanctions might include fines, travel restrictions, and loss of export privileges.