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Punishing acts of WMD proliferation: more easily said than done

Dr Sibylle Bauer

Controlling the export of items that have military applications is a key tool in preventing the spread of weapons of mass destruction (WMD). Every day, customs officers have to determine whether shipments of goods with a potential military application could lead to the proliferation of WMD technology. In December 2008 the Council of the European Union (EU) committed itself to strengthen the legal means to combat proliferation, including a renewed commitment to punish acts of proliferation, when it adopted the New Lines for Action in Combating the Proliferation of Weapons of Mass Destruction and their Delivery Systems. While the goals of this document are laudable, it makes the task sound much more straightforward than it will be in practice.

Even the language used leaves a number of questions unanswered: what exactly do the terms ‘penalties’, ‘punishable acts’ and ‘proliferation’ mean? When should administrative penalties—such as fines or revoking export privileges—be applied? When does a breach of export controls become a criminal offence, and at what point a serious offence? What constitutes an ‘act of proliferation’? To what degree should a legal system penalize the assisting, supporting or organizing of these acts? Does the law distinguish between negligence and intent, and how does it define negligence? Specifically, to what extent does the law define (and punish) acts of brokering, transport, transit, trans-shipment, freight forwarding or financing? How much legal responsibility does it impose on industry and researchers?

All this may sound like legal pickiness, but these are the real-life challenges of enforcing export controls laws and taking offences to court. This discussion is not limited to the EU since United Nations Security Council Resolution 1540 of 2004 obligates all UN member states to put appropriate civil or criminal penalties in place to enforce effective export controls for WMD-relevant items.

 

Increased complexity    

Controlling the movement of items and technology that can contribute to a nuclear, biological or chemical weapon is now more complicated than ever before. This is not just because of technological developments, changing trade and production patterns, and swiftly adapting procurement strategies for WMD programmes. The concept of export control itself is also ever expanding and has moved closer to other issues on the international agenda such as counterterrorism and proliferation financing.

Lists of items subject to control because of their dual (i.e. both civil and military) applications have been agreed—and are constantly updated—by states and groups of states. But it is not the items themselves that pose a security problem—it is the use to which they are put. Non-listed items can even pose a risk if they can be used in connection with a WMD programme. While traditional export control focused on the country of destination, the key factor is now the ultimate end-user—which could be a state, but might be a non-state group or an individual. And the problem is no longer even restricted to items and the technical knowledge of individuals; it now also includes so-called intangible technology transfers—‘technology’ that can be transferred through, for example, software downloads or email.

Non-proliferation efforts have to anticipate all these developments while minimizing obstacles to legitimate trade.

 

Practical legal challenges    

At a recent event, an enforcement official argued that while with drug cases 90 per cent of the work is done when you have made a detection, with proliferation the work only begins when you have detected a suspected case. Export control prosecutions face particularly strong challenges, such as:

  • the typical unfamiliarity of prosecutors and judges with export control laws and regulations and with proliferation and security issues;
  • the challenge of dealing with sensitive or classified materials in court and, more broadly, the sometimes conflicting goals of intelligence agencies and the judiciary;
  • the difficult task of proving intent or a WMD end-use;
  • the difficulties of collecting evidence in other countries, in particular those with suspected WMD programmes, as export control breaches by definition involve cross-border crime; and
  • sometimes legal gaps or a lack of legal clarity.

 

Moreover, a non-proliferation case is a rare, often ‘once in a lifetime’, event for an investigator or prosecutor. Many of those who have dealt with a case said afterwards that if they had known at the beginning what they knew at the end—ranging from legal knowledge to expertise in the technical aspects of the case—the outcome may have been different and more successful. However, at present there is no national, European or international system in place to systematically share the lessons learnt from the cases that are prosecuted. This highlights the importance of documenting and analysing past cases to learn from both the successes and—even more so—the mistakes and to facilitate the creation of an institutional memory.

SIPRI’s most recent Research Report—Enforcing European Union Law on Exports of Dual-Use Goods—makes a concrete contribution to this endeavour through analysis of proliferation cases brought before national courts in the EU. The book describes the often complex arrangements governing the control of dual-use exports in the EU and offers recommendations for enhancing national export control systems and their enforcement.

 

Scope for action at the national level    

Preventing and penalizing acts of proliferation is not impossible. Past cases have shown that it is indeed feasible, but a number of factors have to be in place. First and foremost are political will and a matching legal and policy framework that provides the political backing, legal powers, and financial and personnel resources. Such a system must deserve the name ‘system’—enforcement has to be embedded in a credible non-proliferation policy that cuts across all parts and levels of government.

For example, customs—a key player in enforcement—typically operates under ministries of finance, which tend to prioritize revenue collection and trade facilitation. These ministries must be made aware of their increasing security function and essential role in non-proliferation. The three Cs of cooperation, communication and coordination at the intra-agency, inter-agency and international levels require the appropriate infrastructure, structures and procedures to support them.

Non-proliferation involves prevention, detection, disruption, investigation and prosecution of transfers that contribute to WMD programmes. However, prevention is the real goal and the other enforcement elements come into play only if it fails. Therefore, outreach to all relevant players, including industry and academia, is key and they have to be brought on board as partners in non-proliferation. It is essential to distinguish between breaches committed with intent and those caused by ignorance or neglect: preventing and detecting transfers by a proliferator—who will be determined to deceive and to exploit loopholes in the system—and the transactions of a trader—who may be unaware of the serious consequences of his or her actions—require fundamentally different strategies and approach.

There is ample scope for the EU and countries around the globe to show resolve in preventing and combating proliferation. They must do this by strengthening their systems and putting political commitment into action across the different policy areas. This must extend down to the individual enforcement officer who needs the information, backing, incentive, resources and legal basis to detect and act upon suspicious activity.

ABOUT THE AUTHOR(S)

Dr Sibylle Bauer is Director of Studies, Armament and Disarmament, and the Director of the SIPRI Arms Control, Disarmament and Non-Proliferation Programme.