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

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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