ESRC Research Seminar Series: New Approaches to WMD Proliferation SPRU, Freeman Centre, Sussex, 8-9 January 2007

Parallel Enforcement Initiatives for Chemical Weapons Non- Proliferation: 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 Support to Support to establish/improve/ draft primary draft train Licensing Legislation regulations Authorities/ (National and Officers in the Law) procedures enforcement of laws and regulations

Support for outreach/ Support/train Support / awareness ing training raising to for the for Customs Possible industry and Judicial Officers areas of others Sector Co- operation

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 84% 95% Authority Some legislation 60% 62%

Comprehensive 34% 40% legislation Drafting 92 109 legislation 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 – at www.opcw.org available 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 : “Enforcement of the Chemical Weapons Convention: Actual Investigations and Prosecutions of Offences” Chemical Disarmament Quarterly December 2004 – at www.opcw.org available Cooperation and legal assistance in criminal matters “Cooperation and legal assistance”

CWC Article VII(2):

2. Each State Party shall cooperate with other States Parties and 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