SUCCESSFUL LEGISLATIVE DRAFTING EXPERT WORKSHOP

UNCLAS STATE 118936

SIPDIS

E.O. 12958: N/A
TAGS: PREL PARM PTER KNNP KCRM KZ
SUBJECT: SUCCESSFUL LEGISLATIVE DRAFTING EXPERT WORKSHOP
IN ASTANA


1. (U) SUMMARY: In coordination with experts from the
Terrorism Prevention Branch (TPB) of the United Nations
Office on Drugs and Crime (UNODC),the Department,s Nuclear
Smuggling Outreach Initiative (NSOI) and the U.S. Department
of Justice (DOJ) held a Legislative Drafting Expert Workshop
with the Government of Kazakhstan (GOKZ) in Astana from
September 29 to October 01. More than ten Kazakhstani legal
experts -- from Parliament, the General Prosecutor's Office,
the Ministry of Justice, and Customs -- recommended specific
amendments to Kazakhstan,s Criminal Code to improve the
GOKZ,s capability to prosecute all types of nuclear
smuggling cases including scams and hoaxes. These experts
also proposed ways that the GOKZ could enhance international
legal cooperation against nuclear terrorism. (Note: NSOI is
an interagency effort, coordinated by ISN/WMDT, to enhance
international assistance to combat smuggling of nuclear and
radioactive materials. NSOI focuses comprehensively on those
countries the U.S. intelligence community has identified as
being at greatest risk for having illicit smuggling of
nuclear or radioactive materials occurring on or through
their territories.) END SUMMARY.


2. (U) BACKGROUND: NSOI and the GOKZ have cooperated since
early 2006 to reduce the threat of illicit trafficking in
nuclear and radioactive materials. In late 2006, NSOI and the
GOKZ exchanged diplomatic notes, bringing into force a
political agreement that specifies priority steps to be taken
to improve Kazakhstan,s anti-nuclear smuggling capabilities.
One of the steps in that agreement is to review and
strengthen Kazakhstan,s Criminal Code to ensure that the
GOKZ can prosecute all types of illicit nuclear and
radiological trafficking. To this end, the delegations
(representing NSOI and the GOKZ) agreed that, during the
workshop, legal experts would review relevant Kazakhstani
laws and, if needed, recommend revisions.


3. (U) U.S. experience suggests that nuclear smuggling scams
and hoaxes, in particular, are among the most difficult cases
to prosecute. Nuclear smuggling scams involve actual or
attempted transactions in which the seller misrepresents the
material being offered, usually to increase the material,s
perceived potency or value. Nuclear smuggling hoaxes involve
individual(s) falsely claiming to possess nuclear or
radioactive material and threatening to use it maliciously.
In close collaboration with the Department,s Nuclear
Trafficking Response Group, NSOI has identified six scam and
hoax scenarios of particular concern, which were the focus of
the workshop,s countering nuclear smuggling sessions. END OF
BACKGROUND


4. (U) Prior to the start of the workshop, NSOI hired a local
law firm, TL Consulting, to determine whether relevant
articles of the Kazakhstani Criminal Code were sufficient to
prosecute the six nuclear smuggling scam and hoax scenarios
of concern. DOJ added to TL Consulting,s preliminary
analysis, using it primarily as a starting point to determine
the GOKZ,s ability to prosecute nuclear smuggling scams and
hoaxes and make suggestions regarding improving relevant
articles of Kazakhstan,s Criminal Code. Mr. Walter Gehr and
Ms. Aydan Bashlinskaya, experts from UNODC's TPB, prepared a
similar analysis examining the extent to which Kazakhstan,s
Criminal Code was compliant with the nuclear-related
provisions of the Universal Counterterrorism Conventions.
Both analyses were passed to the GOKZ at the start of the
workshop.


5. (U) During the three-day workshop, participants considered
how the GOKZ should criminalize various nuclear smuggling
cases, including scams and hoaxes. Mrs. Jennifer Mastros
Lynch, an analyst supporting NSOI, provided an overview of
the common nuclear smuggling cases that have, in the past,
been difficult for some countries to prosecute. Mr. David
Cora, a trial lawyer in the Counterterrorism Section of the
National Security Division of the U.S. Department of Justice,
expanded on this overview and presented the USG,s experience
in prosecuting each of these cases. As a result of these
discussions and the review of the Criminal Code, the
participants concluded that Kazakhstan,s laws were
sufficient to prosecute all types of cases but applied
insufficient penalties to deter would-be traffickers. Mr.
Cora suggested that the GOKZ review Article 247 of the
Criminal Code (Illegal Handling of Radioactive Materials) to
consider increasing all penalties for a violation of that
Article to the level of &grave gravity,8 which carries a
more severe imprisonment term of not more than 12 years.


6. (U) Workshop participants also considered how
Kazakhstan,s legislation should be amended to implement
fully its obligations to criminalize nuclear terrorism under
UN Security Council Resolutions (UNSCR) and international
conventions. Participants noted that ratified international
treaties take precedence over domestic legislation, but
reaffirmed the GOKZ's commitment to harmonize its national
legislation with international conventions. UNODC
recommended that the GOKZ consider becoming party to three
additional universal treaties against terrorism:

-The Protocol of 2005 to the Convention for the Suppression
on Unlawful Acts against the Safety of Maritime Convention
-The Protocol of 2005 for the Suppression on Unlawful Acts
against the Safety of Fixed Platforms Located on the
Continental Shelf
-The Amendment to the Convention on the Physical Protection
of Nuclear Material

(U) Most importantly, UNODC recommended that the appropriate
national authorities review the Criminal Code with the goal
of implementing the offenses and the compulsory
jurisdictional grounds set forth in all of the universal
instruments against terrorism.


7. (U) To conclude the workshop, representatives from the
GOKZ, the USG, and UNODC drafted a Plan of Action which
specifies all of the agreed measures the GOKZ should take to
strengthen its Criminal Code and conform better to
international terrorism conventions. The appropriate
national authorities will review the recommendations for
final approval. The senior representative from the
Prosecutor General's Office noted that he would personally
report to his senior leadership on the necessity of
considering UNODC and U.S. suggestions, and said that he
hoped changes could be adopted by spring 2010. In addition,
UNODC, the USG, and the GOKZ agreed to hold a video
conference in 2010 with the experts present at this workshop
and other relevant GOKZ officials to discuss any outstanding
issues relating to the recommendations. Furthermore, the
GOKZ and UNODC tentatively agreed to hold a training workshop
in 2010 for judges and prosecutors on the application of the
universal legal regime against terrorism.


8. (U) NSOI, DOJ, and UNODC representatives are pleased with
the results of the workshop, and will continue to work with
Embassy Astana to press the GOKZ to ensure the
recommendations are implemented.


9. (U) The POC for this cable is Mrs. Jennifer Mastros Lynch,
ISN/WMDT, mastrosjl@state.gov, 202-736-7978.
CLINTON