Global efforts to combat nuclear terrorism are providing an additional focal point for addressing the treatment of detainees taken in the war on terror.  The International Convention for the Suppression of Acts of Nuclear Terrorism (“Nuclear Terrorism Convention” or “NTC”), adopted by consensus by the UN General Assembly on April 13, 2005, arguably helps demonstrate that detainee policies can be shaped within the context of multilateral cooperation to fight terrorism, including terrorism tied to the illicit spread of weapons of mass destruction. 

Since Sept. 11, 2001, the rights of detainees under domestic and international law, including treaties such as the Geneva Conventions, have sparked debate.  While terrorism can, and has been, prosecuted as a crime under domestic legal systems, actual terrorists can occupy a potentially murky legal realm as both domestic law criminals and private perpetrators of acts of war.  That fact has resulted in controversy over the rights enjoyed by those alleged to be involved with terrorism or terrorist groups.

The Nuclear Terrorism Convention, the first draft of which was proposed by Russia in 1997, is the first anti-terrorism convention adopted since the attacks of Sept. 11, 2001.  Of special interest will be how the experience with the Nuclear Terrorism Convention shapes the development of a broader Comprehensive Convention on International Terrorism.

By signing the Nuclear Terrorism Convention the United States would be agreeing, at least in principle, that detainees taken in the war on terror and falling under the treaty would not fall into a “legal black hole,” a prospect with which the U.S. court system also has begun to grapple.

In addition to defining offenses, jurisdiction, and obligations to investigate, prosecute, or extradite alleged offenders, the Nuclear Terrorism Convention, with its ultimate focus on the investigation and prosecution of individuals, also addresses the treatment of detainees.  It calls for fair treatment of detainees and their full enjoyment of rights “in conformity with” domestic law and “applicable … international law, including international law of human rights.”  While leaving “fair treatment” and “applicable ... international law” largely undefined and unspecified, the Nuclear Terrorism Convention does also envision notifications to home countries and the UN Secretary General; visits by a detainee’s home country and the International Committee for the Red Cross; and protections against unlawfully discriminatory extradition requests or non-extradition detainee transfers made without the detainee’s consent.

Fair treatment and enjoyment of full legal rights

NTC Article 12 calls for fair treatment and a detainee’s full enjoyment of rights under both domestic and international law, although its text poses several challenges to the full realization of its spirit:

Any person who is taken into custody or regarding whom any other measures are taken or proceedings are carried out pursuant to this Convention shall be guaranteed fair treatment, including enjoyment of all rights and guarantees in conformity with the law of the State in the territory of which that person is present and applicable provisions of international law, including international law of human rights.1

“Fair treatment” is left undefined and therefore risks being watered down or left uncertain by subjective sensibilities. 

One might recall, for example, a handwritten note on one of the Pentagon detainee memos, questioning limits on how long one could force a detainee to stand.  The author of the note pointed out the number of hours he himself stood each day in the course of his employment, perhaps as if to imply that detainees could be forced to stand longer than had been recommended.2  For its part, the Nuclear Terrorism Convention does little to define what “fair treatment” is.

Similarly, the requirement to apply domestic law, the provision that a detainee shall enjoy rights and guarantees “in conformity with” the law of the detaining power, risks begging the question of whether and how that law permits itself to be applied to begin with.  In the context of Guantanamo Bay detentions, for example, some attempted to argue that an application of U.S. law should result in the conclusion that rights ordinarily enjoyed under U.S. law would not apply to detentions of foreign nationals at Guantanamo Bay.  In other words, some argued that applying U.S. law effectively resulted in not applying U.S. law, at least in the same way it would be applied in other circumstances. 

Perhaps more problematic is the reference to “applicable provisions of international law,” likewise begging the question of which provisions of international law are applicable to begin with.  One might recall, for example, different positions taken by the administration of U.S. President George W. Bush and U.S. allies over whether the Geneva Conventions were applicable to detentions of foreign nationals at Guantanamo Bay.

Also left vague is whether the addition of the phrase after the comma, “including international law of human rights” is to be taken as indicating that human rights law is, in fact, part of the international law deemed applicable. 

Some might argue that the phrase “applicable provisions of international law, including international law of human rights” means the same as … applicable international law, with human rights law included among the international law that is applicable.  Others might argue that “international law of human rights” is referenced as an example and subset of “international law” with the word “applicable” limiting both “international law” as a whole and its subset “international law of human rights.” Such an argument would assert that the phrase “applicable provisions of international law, including international law of human rights” means international law, including human rights law, to the extent it is applicable.

Of course, as a practical matter, what may have complicated these types of questions the most may be the circumstances under which a detainee is seized, including the conditions present in the place where he is seized.  For example, when alleged co-conspirators in the attacks of Sept. 11, 2001, where located in Hamburg, there was no invasion, combat, detention at a military base, or controversy over the Geneva Conventions; Germany has rule of law, is a U.S. ally, and simply arrested and attempted to prosecute the suspects.  In contrast, Afghanistan in 2001 was a failed state with some territory in the hands of an internationally unrecognized Taliban rogue regime, other areas in the hands of rebels, and areas that were arguably lawless (and to some extent still might be).  Faced with that scenario and the desire to apprehend those responsible for the Sept. 11 attacks, the United States invaded with it military and carried out wholesale combat operations.  Detainees ended up in U.S. custody within that context, with controversy arising over their status, treatment, and ultimate fate.

Specified Rights

While it leaves open the question of what constitutes fair treatment, and potentially invites dispute over the full extent of law applicable to the treatment of detainees, the Nuclear Terrorism Convention does seek to enumerate some rights for detainees, described below.

Detention notifications and visits from home country and ICRC

NTC Article 10 would require a detaining power party to the treaty to notify a detainee’s home country of his detention and the circumstances alleged to justify it, either directly or through the UN Secretary General.  The treaty also would require the detaining power to permit a detainee direct communication with, and a visit from, an appropriate representative of his home country, and to inform a detainee of those rights.

Under NTC Article 9, the home country relevant to the treaty is the detainee’s country of nationality or, if he is a stateless person, his country of habitual residence.

NTC Article 10 envisions visits to detainees by the International Committee for the Red Cross (ICRC), but does not seek to create a right to the visits.  Rather it looks to preserve any such right if it already exists.  Moreover, it would place the power to assert the right to an ICRC visit in the hands of the detainee’s home country, not the detainee or the ICRC.  (Although, as seen above, NTC Article 12 also preserves detainee rights under other applicable international law.)

In the event a detaining power prosecutes and convicts a detainee, the treaty would require the detaining power to report the conviction to the UN Secretary General, who in turn is to report that information to all states parties.

Hybrid status

The Nuclear Terrorism Convention arguably could place a nuclear terrorism detainee in a hybrid middle ground between prisoner of war and ordinary criminal.  A prisoner of war would be entitled to visits from, and registration with, the ICRC, but not necessarily visits by their home country (especially considering that in a traditional war their home country could be the enemy).  An ordinary criminal would be entitled to contacts with his home government but not necessarily the ICRC.  As mentioned above, however, the Nuclear Terrorism Convention is not to exist in a vacuum but to help ensure respect for other applicable international and domestic law given the circumstances of a particular case.

International cooperation with prosecutions and investigations

In addition to the fact that the Nuclear Terrorism Convention sets out notification requirements and fair treatment provisions, by signing and ratifying the treaty the United States would be agreeing to cooperate with other countries’ efforts to prosecute alleged nuclear terrorists.  The extent to which the United States has or has not been cooperative with foreign terror prosecutions in the past has been a subject of contention, especially in high-profile cases in Germany and Indonesia. 

Detainee Transfers

The treaty also speaks to the question of detainee transfers.  In the event of extradition, the Nuclear Terrorism Convention in Article 16 would provide something analogous to an asylum exception, permitting the detaining power the option not to extradite if it feared extradition was for the purpose of unlawful discrimination and persecution for race, religion, nationality, ethnic origin or political opinion.  However, under NTC Article 15, nuclear terrorism can never be considered a political offense, and it can never be argued that extradition should be denied based on the notion that the act of nuclear terrorism itself was a political offense, carried out for political motives.

It remains unclear what impact the treaty could have on any feared or alleged attempt to engage in the “rendition” of detainees to foreign countries for more aggressive handling.  Under the treaty, a detainee would have to give his consent to be transferred unless there was a formal prosecution and extradition request.  Even in that event, the country to which the detainee was extradited would have to make appropriate notifications of his detention, including reporting any resulting conviction. 

Domestic Nuclear Terrorism

NTC Article 3 begins by providing that the Nuclear Terrorism Convention will not apply to domestic nuclear terrorism, but goes on to include exceptions so extensive that its effective function is the opposite, to extend the treaty’s applicability in all or most respects to cases of domestic nuclear terrorism. 

First, it purports not to apply if the offense is committed within a single state; the alleged offender and victims are nationals of that state; the alleged offender is found within the state; and essentially no other state has a basis for jurisdiction under the treaty.  However, the potential that all these factors would be present simultaneously seems unlikely. 

Modern terrorism often involves what law defines as conspiracies, i.e., multiple parties planning and working together towards an unlawful goal, with related activities such as training, trafficking, travel, meetings, communications, funding, and other aspects of its activities cutting across international boundaries and featuring diverse confederates of multiple nationalities. 

In addition, nuclear terrorism most likely would be indiscriminate in its actual or planned impact on a potentially diverse variety of victims, perhaps in a densely populated or heavily traveled location.  In today’s world, if an attempted nuclear terrorist attack targeted a densely occupied city it might be unlikely that all potential victims would be of a single nationality. 

One conceivable exception might be a conventional attack by domestic terrorists on an isolated nuclear facility for the limited purpose of obtaining nuclear materials illegally, where no foreign nationals were present at the facility (the Nuclear Terrorism Convention would apply itself to such an event under its list of offenses).  But even in that case, for Article 3 to have its fullest effect there could be no involvement of foreign nationals even with respect to planning, funding, supply of materials, sharing of information, or virtually any other actionable aspects of the planning and execution of the attack.

In contrast, Jose Padilla, the U.S. national and alleged “dirty-bomber” arrested at Chicago’s O’Hare airport and accused of involvement with a conspiracy to carry out a radiological attack within the United States, was alleged to have conspired with foreign nationals and to have traveled overseas in connection with the conspiracy.

But even if the above-mentioned exceptions were not met, and Article 3 purported to “remove” a case of domestic nuclear terrorism from the Nuclear Terrorism Convention’s scope, the treaty directs that various other provisions in fact still would apply to nuclear terrorism suspects.  Not the least among those provisions still applying would be Article 12 requiring fair treatment and the enjoyment of full rights under applicable international and domestic law.

Conclusion

As seen above, the Nuclear Terrorism Convention requires some safeguards for detainees, and aspires to draw greater focus on the rule of law as the vantage point from which to regard both nuclear terrorism and the treatment of nuclear terrorism suspects, witnesses, and offenders.  At the same time, the text of the Nuclear Terrorism Convention, examined closely, provides various loopholes and leeway. 

Of great potential interest will be how the experience with the Nuclear Terrorism Convention shapes the final disposition of a Comprehensive Convention on International Terrorism still being developed.  The United States, Russia and others, praising the adoption of the Nuclear Terrorism convention, all have pointed to the need to continue forward towards bringing a Comprehensive Convention on International Terrorism into being.

Further reading:

Ambassador Richard Boucher, “International Convention for the Suppression of Acts of Nuclear Terrorism,” State Department press statement, April 13, 2005, http://www.state.gov/r/pa/prs/ps/2005/44603.htm

“Canada Welcomes new Convention on Nuclear Terrorism,” Canadian Department of Foreign Affairs and International Trade News Release No. 65, April 13, 2005,

French Ministry of Foreign Affairs spokesperson, “Adoption by the General Assembly of the United Nations Convention on the Suppression of Acts of Nuclear Terrorism,” (excerpt), April 13, 2005, http://www.diplomatie.gouv.fr/actu/article.gb.asp?ART=48766

Peter Heinlein, "UN Approves Nuclear Terrorism Treaty," Voice of America, April 13, 2005, http://www.voanews.com/english/2005-04-13-voa50.cfm

“Statement by Ambassador Stuart Holliday, Alternate United States Representative to the UN for Special Political Affairs, on the Adoption of the International Convention for the Suppression of Acts of Nuclear Terrorism, in the General Assembly, April 13, 2005,” United States Mission to the United Nations press release #68 (05), April 13, 2005, http://www.usunnewyork.usmission.gov/05_068.htm

International Convention for the Suppression of Acts of Nuclear Terrorism, UN General Assembly A/59/766, April 13, 2005, http://www.un.int/usa/a-59-766.pdf (UN General Assembly resolution with annex containing the text of the Nuclear Terrorism Convention)

“New Convention Against Nuclear Terrorism Bolsters Global Framework,” International Atomic Energy Agency staff report, April 14, 2005, http://www.iaea.org/NewsCenter/News/2005/conv_nuclterror.html

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