WORKSHOP ON NUCLEAR SMUGGLING LAW-MAKING IN

UNCLAS SECTION 01 OF 02 YEREVAN 000204 SENSITIVE SIPDIS JUSTICE FOR DAVID CORA E.O. 12958: N/A TAGS: PREL PARM PTER KNNP KCRM KGIC US UP AM SUBJECT: WORKSHOP ON NUCLEAR SMUGGLING LAW-MAKING IN ARMENIA REF: 07 YEREVAN 1420 ¶1. (U) SUMMARY: With experts from the United Nations Office on Drugs and Crime (UNODC),the Department's Nuclear Smuggling Outreach Initiative (NSOI),the Department of Justice (DOJ),and Embassy Yerevan held a "Legislative Drafting Expert Workshop on the Criminal Law Aspects of the Universal Legal Framework Against Nuclear Terrorism" with the Government of Armenia (GOAM) on February 18-19. This workshop produced recommendations to amend the Armenian Criminal Code to improve the GOAM's capability to prosecute all types of nuclear smuggling cases, including scams and hoaxes, and proposed ways for the GOAM to enhance international legal cooperation against nuclear terrorism. END SUMMARY. ¶2. (U) BACKGROUND: On July 14, 2008, Secretary of State Condoleeza Rice and Armenian Foreign Minister Edward Nalbandian signed the "Joint Action Plan between the Government of the United States of America and the Government of the Republic of Armenia on Combating Smuggling of Nuclear and Radioactive Materials." This political agreement specifies twenty-eight steps that the two governments intend to take to improve the GOAM's capabilities to prevent, detect, and respond effectively to attempts to smuggle nuclear or radioactive materials. ¶3. (U) One of the priority steps included in the joint action plan is to ensure that Armenia possesses the requisite laws to enable its government to prosecute all cases of nuclear smuggling, including scams and hoaxes. Effective prosecution of criminals involved in illicit trafficking is vital to deter what is primarily an opportunistic, profit-driven crime. To this end, NSOI and the GOAM agreed to seek the assistance of legal experts to review Armenian laws and, if they were deemed insufficient, to advise on appropriate revisions. (NOTE: NSOI is an interagency effort, coordinated by ISN/WMDT, to enhance international assistance to combat smuggling of nuclear and radioactive materials. NSOI focuses intensively and comprehensively on those countries identified by the U.S. intelligence community as being at greatest risk for having illicit smuggling of nuclear or radioactive materials occur on or through their territories. END NOTE) ¶4. (U) THE WORKSHOP: To prepare for the workshop, David Cora, a trial attorney from the National Security Division of DOJ, with assistance from Steve Kessler, the Resident Legal Advisor at Embassy Yerevan, drafted a legal analysis to determine whether relevant articles of the Armenian Criminal Code were sufficient to prosecute the nuclear smuggling cases of particular concern. Walter Gehr and Admirela Ancion, experts from UNODC's Terrorism Prevention Branch, prepared a similar analysis to determine if the Armenian Criminal Code was compliant with the nuclear-related provisions of the Universal Counter-Terrorism Conventions. Both analyses, which were passed to the GOAM prior to the workshop, included recommendations to strengthen the Armenian Criminal Code. ¶5. (U) HOW TO BETTER CRIMINALIZE NUCLEAR TERRORISM: During the two-day workshop, the 25-30 GOAM participants considered how Armenian legislation could be amended to implement fully Armenia's obligations to criminalize nuclear terrorism that arise from UN Security Council Resolutions (UNSCR) and international conventions. The UNODC experts emphasized the importance of harmonizing definitions in Armenian legislation with the definitions used in international agreements. In addition, UNODC urged the GOAM to ratify by the end of 2009 the following relevant treaties: "International Convention for the Suppression of Acts of Nuclear Terrorism;" "Protocol of 2005 to the Convention for the Suppression on Unlawful Acts against the Safety of Maritime Convention;" "Protocol of 2005 to the Protocol for the Suppression on Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf;" and the "Amendment to the Convention on the Physical Protection of Nuclear Material." Finally, UNODC recommended strongly that the GOAM amend and supplement accordingly Articles 217, 233, 234, 235, and 303 of the Armenian Criminal Code. ¶6. (U) HOW TO CRIMINALIZE NUCLEAR SMUGGLING/HOAXES: Workshop participants also considered how the GOAM could criminalize various types of nuclear smuggling cases, including scams and hoaxes. Ms. Jennifer Mastros, an analyst representing NSOI, provided an overview of the common types YEREVAN 00000204 002 OF 002 of nuclear smuggling cases that in the past have been difficult for some countries to prosecute. David Cora expanded on this overview, presenting the USG's experience in prosecuting such cases. On the second day of the workshop, in a follow-up session on the same topic, Cora and Steve Kessler led a discussion on how various law enforcement tools could be used to investigate nuclear smuggling scams in Armenia. As a result of these discussions, Cora suggested two ways in which the GOAM could amend Article 259 of its criminal code to improve its effectiveness in prosecuting each of the types of nuclear smuggling cases. ¶7. (U) WORKSHOP'S PLAN OF ACTION: To conclude the workshop, GOAM representatives worked with UNODC and the USG to draft a Plan of Action, which specifies all of the agreed measures the GOAM should take to strengthen its Criminal Code. In addition, UNODC and the GOAM agreed to hold two video conferences with experts present at this workshop and other relevant Armenian officials to discuss any outstanding issues relating to UNODC's recommendations. Furthermore, the GOAM, UNODC, and the USG agreed tentatively to hold in 2010 a training workshop for judges and prosecutors on international cooperation in criminal matters to prevent and suppress biological, chemical, and nuclear terrorism. ¶8. (SBU) SIGNIFICANT FOLLOW-UP REQUIRED: While the U.S. and UNODC experts recommended amendments for a half dozen of Armenia's Criminal Code, only one article was substantively discussed during the workshop (Article 259). A contentious discussion amongst GOAM participants over the proposed wording to amend Article 259 prevented addressing the five other articles identified by UNODC and the DOJ as needing amending. ¶9. (SBU) Another hurdle that surfaced during the workshop was the inability of GOAM participants to designate a lead agency that will be responsible for overseeing the amendments to the Criminal Code. The Embassy thought the Ministry of Justice would be the logical choice, but MOJ representatives said it should be Armenia's National Security Service (NSS),which is responsible for protecting Armenia's borders. The Ministry of Foreign Affairs representatives were not able to persuade the NSS participants to assume this role, however. ¶10. (SBU) Davit Harutiunian, Member of Parliament and Chairman of the Parliament's State and Legal Affairs Committee, recommended to UNODC and USG experts that a small legislative drafting group be established within the GOAM to work on the amendments in a smaller, more congenial setting. He added that the Parliament would be willing to finance the hiring of an independent legal expert to advise the group on conforming the amendments to existing Armenian law. Harutiunian did not specify, however, how to establish such a drafting group, nor what kind of authority it would have. George Kocharian, the lead MFA representative at the workshop, proposed that the USG help his Ministry establish the drafting group by submitting an official request to the Armenian Government. According to Kocharian, an order by the Government, signed by the Prime Minister, would be the most direct and effective way to establish the group. RLA and PolOff agreed to meet with Kocharian to discuss his proposal more fully. ¶11. (SBU) COMMENT: One of the major successes of the workshop was the robust number of Armenian participants from various agencies who showed up and actively participated. Unfortunately, the ambitious agenda to address a number of amendments to Armenia's Criminal Code got bogged down in an energetic debate over the wording and substance of the proposed amendments. With the support of NSOI, DOJ, and UNODC, the Embassy will continue to work with the MFA and others in the GOAM to ensure the action plan recommendations are implemented and the drafting group is formed. The UNODC and US experts realize that amending Armenia's Criminal Code is going to be a multi-year process. PENNINGTON