Effective Regime Governing Sanctions against Staff Members of the Technical Secretariat for Breaches of Confidentiality: paper 21

YORK VON LERSNER, PATRICIA RADLER, THOMAS KURZIDEM,
RONALD G. SUTHERLAND AND THOMAS STOCK

Bad Homburg, Germany
8- 10 September 1995

I. Introduction

Once the Draft OPCW Policy on Confidentiality was finalized and adoptedat the Eleventh
Plenary of the PrepCom, 1 the Expert Group on Confidentiality wasentrusted with investigating
the issue of penal sanctions against Technical Secretariat (TS) staff membersfor breaches,
especially serious breaches, of confidentiality. 2 While investigatingthe various possibilities for
a regime governing breaches of confidentiality the group will focus particularlyon the
possibilities of concurrent jurisdiction. 3 The implementation ofsuch a regime - whether
established under concurrent or a single jurisdiction - requires implementationwithin the
national penal legislation of States Parties. States Parties have eitherto defer their jurisdiction
for these offences (single jurisdiction system) or to implement penal provisionsfor serious
breaches of confidentiality to prosecute staff members in accordance withnational law once the
immunity of the staff member has been waived by the Director- General.4 The purpose of this
paper is to address some aspects of the development of an effective regimegoverning sanctions
against staff members of the TS for breaches of confidentiality and itsimplementation into the
legal systems of States Parties. Thus, for the establishment of such a regimethe prerequisites
of it first have to be elaborated, 5 second, compliance with theseprerequisites in a single or
concurrent jurisdiction have to be examined, 6 and finally, the resultsof the examination have to
be compared. 7

II. Requirements of an effective regime

The establishment of an effective regime requires compliance with standardsof criminal
procedure in both national and international law. 8 Therefore thefollowing points have to be
taken into account:

The definition of a breach and a serious breach of confidentiality

One standard of criminal procedure is the principle of nullum crimen sinelege, which, inter
alia, means that one can only be prosecuted and convicted if the offencehas been established in
law before the action of the culprit took place. The lack of clearly definedwar crimes was one
of the main criticisms during the Nuremberg War Crime Tribunal. 9Thus, a clear and
unambiguous definition of what establishes a serious breach of confidentialityhas to be
developed. The same applies to breaches of confidentiality for which disciplinarymeasures will
be imposed. 10 Without precise definitions, different sanctions forcases with similar facts could
be imposed and the regime would appear to be arbitrary. However, clear definitionsare only
useful if they are known by the staff members of the TS. Thus, it is necessaryto include these
definitions in the Staff Rules and Regulations and staff members shouldsign a separate
declaration, stating that they are aware about the existence of possibleoffences and penalties.
This will also foster the effect of deterrence, which requires the knowledgeof the offences by
potential culprits.

The imposement of sanctions

For an effective regime it is necessary that sanctions for serious breachesof confidentiality are
imposed in accordance with the facts of the case and independent of thestanding of staff
members. Otherwise the regime would fail of having an effect of deterrence,which is an
important part of it. To meet this requirement the following has to be observed:

Waiver of Immunity

The wording of paragraph 20 of the Confidentiality Annex grants discretionto the Director-General
for waiving the immunity of staff members. 11 In order to withholdthe effect of
deterrence of the penal sanctions, the discretion of the Director- Generalhas be limited.
Otherwise, the effectiveness of the regime will only depend on the Director-General's exercise
of discretion which leaves room for arbitrary decisions in cases of similarfacts. Thus, it would
be useful to consider the issuing of rules or guidelines concerning factsof when the immunity
may be waived.

Further, the Attorney- General of the State Party enforcing its jurisdiction,who is in charge of
prosecuting theses offences, has to be obliged to investigate each individualcase, in which the
immunity of a staff member has been waived.

Third, as the waiving of immunity always will be one of the last steps tobe taken by the
Director- General in an investigation, an independent committee should alsoinvestigate the
allegation. This limits the discretion of the Director General or the attemptsof any other staff
member to influence the investigation. In this respect, one should alsopay attention to the
problem of when an investigation will be initiated. The wording of the ChemicalWeapons
Convention (CWC) is unambiguous; only the Director- General can initiatean investigation. 12
Here, rules have to be established, which may limit the discretion of theDirector- General due
to objective facts, such as e. g., an allegation by a State Party, two differentallegations
independent from each other by professional staff members etc., should automaticallylead to
an investigation.

Appearance in court and execution of sanctions

For an effective regime the accused staff member has to appear in court.Furthermore, any
sentences delivered by court must be enforced.

Jurisdiction

To establish an effective regime requires that no ambiguities exist regardingthe enforcement of
the jurisdiction. Otherwise the initiation of the trial would be delayeddue to contested opinions
of States Parties concerning the enforcement of jurisdiction.

Firm legal basis of the criminal court

A requirement which has to be observed is that any court hearing the caseof a serious breach of
confidentiality needs a solid legal foundation. 13 This is certainlygiven for courts in the national
legal system. A single jurisdiction solution would require an agreementby States Parties that
courts of one State Party (preferable the Netherlands as the host country)14 can enforce their
jurisdiction in case of alleged serious breach of confidentiality.

Rules of criminal procedure

Rules governing the criminal procedure have to be established. The necessityof such criminal
procedures has previously been recognized by the International Law Commission(ILC) as a
requirement of any international criminal court. 15 Therefore, clearand unambiguous rules have
to be elaborated with which all staff members have to be familiar. 16The importance of this
requirement is highlighted again by reference to the Nuremberg War CrimeTribunals, where
the applicability of Angolo- American criminal procedure rules have beenheavily criticized due
to the fact that the culprits were not familiar with these rules. 17

III. Examination of the prerequisites in a single or concurrent jurisdictionbased system

With regard to the prerequisites of a definition of a serious breach ofconfidentiality the danger
exists that, even if the definition is implemented in all national penalacts (concurrent
jurisdiction solution), similar cases will be interpreted differently bycourts of different States
Parties. 18 This will lead to unequal treatment of staff memberswith nationality being the
decisive factor for the unequal treatment. The problem would not occur ina single jurisdiction
system as the same court will always hear the case and develop precedentsfor the offence.
Examining the question of investigation of Attorney- Generals there is nodifference between
a single and the concurrent jurisdiction solution. The same is valid forthe waiving of
immunity, being an aspect that is exclusively in the sphere of the Organization.

The appearance in court would be assured in a concurrent jurisdiction system.Each State
Party will certainly comply with that requirement and the staff member concernedwould appear
in court. However, the crucial weakness of a concurrent jurisdiction systemis that courts could
be influenced by States Parties or receive orders to take a favorable decisionfor the accused,
especially if the State Party has benefited from the offence. Here, legal'safe heavens' for
national staff members could be established, 19 and the State Party,by trying the staff member
before its court, would even comply with its obligation under the CWC.

For a single jurisdiction solution, appearance in court is one of the, ifnot the major, problem.
To comply with this prerequisite States Parties have to extradite staffmembers of the TS
regardless of their nationality. But the extradition of its own nationalsby a state is prohibited by
law in many countries, 20 and an obligation to extradite staff membersis not included in the
CWC. The argumentation that States Parties are obliged to extradite theirnationals pursuant to
Article VII paragraphs 2 and 7 of the CWC in conjunction with paragraph21 of the
Confidentiality Annex (extradition as part of the obligation to cooperate)21 cannot be upheld.

Article VII paragraph 2 refers to obligations of States Parties under theCWC (mainly Article
I and Article VII paragraph 1 CWC) and there is nothing in the wording whichrefers to an
obligation to extradite its own nationals by States Parties. As such anobligation affects the
basic relationship between an individual and the national state, the obligation- new in
international law - would need to be expressed explicitly in the CWC. Consideringparagraph
21 of the Confidentiality Annex States Parties are only obliged 'to thepossible extent' to
cooperate and to support the Director- General in the investigation of abreach of confidentiality.

The limitation 'to a possible extent' clearly shows that States Partieswere aware during the
negotiations of the CWC, that their cooperation may be limited in the investigationdue to their
respective national laws. It would therefore, be a mis- interpretation ofthe Convention, if this
limitation is not respected. Further, under paragraph 21 of the ConfidentialityAnnex States
Parties are only obliged to cooperate with the Director- General duringthe investigation of the
alleged breach, and the investigation itself does certainly not requirethe extradition of staff
members. To support the Director- General in taking appropriate action,in cases a breach of
confidentiality has been established, does not include the obligation forStates Parties to
extradite their own nationals. 22

Examining the requirement of jurisdiction, it is obvious that a single jurisdictionsystem
complies with the prerequisites of this requirement, whereas a concurrentjurisdiction system
raises various problems in this respect. The question will be to define,which state can enforce
its jurisdiction according to which circumstances. Given the scenario thata staff member, who
is a national of state A, committed a breach of confidentiality in a stateB and thereby causes
damage to state C. Is it State A, B or C which should enforce its jurisdiction?

The enforcement of sentences in a concurrent jurisdiction system allowsStates Parties the
opportunity to produce 'safe heavens' for the staff member by either notapplying any sanction
or applying the sanction in a way, that would be contradictory to the purposeof Part D of the
Confidentiality Annex. 23 This opportunity, however, is not givenin a regime based on a single
jurisdiction, as the State Party, which enforces its jurisdiction, willalso execute the sentence
and the execution will be observed by other States Parties. Furthermoreit is unlikely that the
executing State Party, even if it has benefited from the breach, will applydifferent standards
on convicted TS staff members as the State Party would lose to a great extentconfidence on the
political level.

Regarding clear procedural rules, it has to be observed that all staff membersare familiar with
the criminal procedure rules and, particular with their rights in a trial.This is especially relevant
for a single jurisdiction system, but could also be relevant for a concurrentjurisdiction solution,
given the case where a staff member will be prosecuted in a state otherthan his national state.

IV. Conclusion

Comparing the two possibilities for an effective regime, it became obviousthat a solution based
on a single jurisdiction for these offences is the preferable solution.A regime based on
concurrent jurisdiction contains too many weak points and thereby, leavesroom for States
Parties to undermine the purpose of Part D of the Confidentiality Annex.However, states are
very unwilling to defer their jurisdiction and a solution to the problemof extradition seems to
be very unlikely at the moment. 24 Thus, the establishment of aneffective regime based on
concurrent jurisdiction will be the predictable solution. In order to limitthe above noted
weaknesses safeguards have to be established in an agreement by the StatesParties. This
agreement has to include, inter alia, the following points: 25

- All States Parties implement the same definition of a serious breach ofconfidentiality in
their penal law system. This definition must define not only the circumstancesof the offence,
but also a minimum sanction for the offence. Further, one could also listsanctions proposals in
accordance with the seriousness of the breach which should be taken intoaccount by national
courts as guidelines. This will help to come closer to a uniform applicationof the definition and
sanctions;

- The OPCW has to observes any such trial, the execution of sanctions andhas to reports to
the Executive Council. Another possibility is to include these reports inthe annual
Confidentiality report;

- Clear definitions under which circumstances which States Parties' jurisdictionwill apply;

- Evidence produced during the investigation of the case prior to the waivingof the
immunity, has to be applicable in the trial; and

- State Parties have to consider the interpretation of the definition ofthe offence by observing
different cases. Directives for the interpretation should be developed,which are binding for
national courts.

To adhere to these prerequisites will certainly help to develop and strengthenan uniform
application to the offence 'serious breach of confidentiality' and thus,provide for and support
an effective regime governing the sanctions against staff members of theTS for breaches of
confidentiality.




Footnotes:

1 PC- XI/ 17 paragraph 7.7 (page 5).

2 Commission Report PC- XI/ 17 paragraph 7.8 and 7.9 (page 6); also Annex2 to this Report at p. 22, paragraph IV. 1.

3 The issue has already been considered by the PTS (PC- VII/ B/ WP. 1 andPC- X/ B/ WP. 3 paragraph 16 et seq.) and within the Expert Group on Confidentialityat the beginning of this year (PC- X/ B/ WP. 7 paragraph 2). By a concurrentjurisdiction solution it is understood that all State Parties can enforcetheir jurisdiction for breaches of confidentiality according to certaincircumstances (e. g. the breach has been committed on the territory of theState Party or the culprit or the victim of the breach is a national ofthe State Party). Whereas in a single jurisdiction solution all State Partieswould have to defer their jurisdiction for breaches of confidentiality underthe jurisdiction of one State Party, which will enforce its jurisdictionfor all breaches of confidentiality.

4 The Director- General can waive the immunity of staff members pursuantto paragraph 20 of the Confidentiality Annex.

5 see under II. Requirements of an effective regime (below).

6 see under III. Examination of the prerequisites in asingle or concurrentjurisdiction based system (below).

7 see under IV. Conclusion (below).

8 Crawford, J., The ILC adopts a Statute for an International Criminal CrimeCourt, 89 AJIL (1995), at p. 416.

9 Ipsen in Ipsen, Vlkerrecht, third ed., Munich, 1990, ß38 no. 25.

10 Paragraph 20 of the Confidentiality Annex of the CWC.

11 Paragraph 20: .... In cases of serious breaches, the immunity from jurisdictionmay be waived by the Director-General.

12 Paragraph 19 of the Confidentiality Annex of the CWC.

13 See to that Crawford, J., The ILC adopts a Statute for an InternationalCrime Court, 89 AJIL (1995) at p. 416.

14 See also PC- X/ B/ WP. 3 paragraph 20.

15 See Crawford, J., The ILC adopts a Statute for an international CriminalCourt, 89 AJIL (1995) at p. 416.

16 However, so far no complete body of rules for criminal procedures existsin international law, see Crawford, J., The ILC adopts a Statute for aninternational Crime Court, 89 AJIL (1995), at p. 407.

17 Ipsen in Ipsen, Vlkerrecht, 3rd ed., Munich 1990, ß38 no. 25.

18 See also PC- VII/ B/ WP. 1 paragraph 4.5.

19 PC- X/ B/ WP. 3 Paragraph 18.

20 See to that Jennings/ Watts, Oppenheim's Intrnational Law, Oxford 1990,at p. 956.

21 PC- X/ B/ WP. 3 paragraph 19.

22 This position is shared by Krutzsch, W./ Trapp, R., Commentary on theChemical Weapons Convention, Dordrecht 1994, at p. 118/ 9, where it is pointedout that 'Cooperation and legal assistance in the prosecution of such offences(serious breaches of confidentiality) should exerted in the following fields:- extradition;...( other fields are following).. '. Although it is not totallyclear what is meant by the term 'exerted' in this context it is assumedthat the authors refer to extradition being a field to which cooperationshould be extended and that no obligation to extradite
own nationals does exist for the States Parties under the CWC so far.

23 That states are quiete willing to produce such safe heavens is demonstratedby an example: After the bombing of the Rainbow Warrior the two French agentshave been band on an island in the South Pacific for three years. Both agentswere brought back to France after one year and recently being honoured forthis action.

24 See the difficulties described by W. C. Gilmore, Combating InternationalDrugs Trafficking: The 1988 United Nations Convention Against Illicit Trafficin Narcotic Drugs and Psychotropic Substances, Commonwealth Secretariat,London, at p. 20 during the discussion of the United Nations ConventionAgainst Illicit Traffic in Narcotic Drugs and Psychotropic Substances byaddressing the problem of extradition; see also Jennings/ Watts, Oppenheim'sInternational Law, Oxford 1990, at p. 956 and footnote 4 on that page.

25 The list is far from being complete.