Nuclear Terrorism in a Globalizing World: Assessing the Threat and the Emerging Management Regime

Joyner, Christopher C., Parkhouse, Alexander Ian, Stanford Journal of International Law

TABLE OF CONTENTS

  I. INTRODUCTION
 II. BACKGROUND
     A. The Cause for Concern
III. ANALYSIS OF THE ISSUE
     A. Dimensions
     B. Ramifications: Early Problems Created by the Threat
     C. Economic, Political, and Legal Impacts of Nuclear Terrorism on
        International Relations
IV. RECOMMENDATIONS AND REMEDIES
     A. International Law and Enforcement
     B. National Policy
 V. CONCLUSION

On November 8, 2007, four gunmen attacked the Pelindaba nuclear facility located near the Hartbeespoort Dam, eighteen miles west of Pretoria in the Republic of South Africa. News reports suggested that the attackers gained access to the building by using a ladder to climb over a wall. They then broke into the emergency control center in the center of the facility, stole a computer, which they eventually left behind, and breached a control room that was electronically sealed. When confronted by a senior emergency officer at the facility, they shot and seriously wounded him. The South African Nuclear Energy Corporation, the national agency that operates the Pelindaba facility, revealed that the intruders disabled several security devices, including a 10,000-volt electrified fence, which intimated inside familiarity of the system. Although closed circuit television cameras detected their presence, no security guards were viewing the cameras at that time. The four men spent forty-five minutes inside one of South Africa's most heavily guarded "national key points, " i.e., a place considered by the government to be so vital that damage to or disruption of it might compromise the Republic's national interests. At the same time that these four gunmen entered Pelindaba from its eastern perimeter, a second group of attackers unsuccessfully attempted to break in from the west. That these episodes occurred coincidentally suggests a coordinated attack.

Pelindaba is regarded as one of the most secure nuclear facilities in South Africa. It is surrounded by electric fencing, maintains twenty-four hour closed-circuit television surveillance, has armed security guards, and has special security controls at various checkpoints. It is also the facility where hundreds of kilograms of weapons-grade uranium--enough to make an estimated twenty-five nuclear bombs--are stored. Nevertheless, what makes the November 2007 attack on the Pelindaba facility all the more worrisome is that had the intruders been successful, they would have achieved the first known theft of fissile materials from a nuclear power plant leading to production of the "world's first terrorist nuclear bomb." (1)

I. INTRODUCTION

In the period after the attacks of September 11, 2001 (9/11), nuclear terrorism has emerged as the foremost threat to Western security. The prospect of a suicide bomber driving a truck armed with a crude nuclear device into the heart of a major urban area is today considered the ultimate nightmare. During that debates preceding the 2004 U.S. presidential election, both George W. Bush and John Kerry agreed that the gravest security concern to the United States in the twenty-first century was that a nuclear weapon might fall into the hands of terrorists. (2) Similarly, after United Nations experts issued a report in 2004 on major threats to world security that included nuclear terrorism, Secretary-General Kofi Annan underscored this concern by asserting that, "nuclear terrorism is still often treated as science fiction ... I wish it were. But unfortunately we live in a world of excess hazardous materials and abundant technological know-how, in which some terrorists clearly state their intention to inflict catastrophic casualties." (3)

The 9/11 attacks on the World Trade Center in New York and the Pentagon in Washington, D.C. remain a stark reminder of the vulnerability of the United States to foreign terrorist strikes. Those events also raise serious concern over the prospect that terrorists might acquire and detonate nuclear weapons in order to achieve their radical aspirations. The reality of this threat is magnified today by the increasing availability of nuclear weapons, the inadequate security of nuclear materials, and magnified by the enhanced capability that globalization affords terrorist groups to plan, coordinate and launch transnational assaults on a large scale. (4) While an array of multilateral legal instruments and other international initiatives have emerged since 9/11, the ability to counter the threat of nuclear terrorism requires wider and closer cooperation among governments--circumstances that still appear to be lacking.

This study argues for governments to develop a multi-layered strategy to secure and protect nuclear weapons and materials from theft or armed assault. Such a strategy should emphasize the expansion of international legal norms, but more importantly, it must provide for genuine implementation and enforcement of existing international agreements and U.N. Security Council resolutions concerned with nuclear terrorism. At the same time, policymakers must elevate the threat of nuclear terrorism to the highest priority for their national political, legal and security systems. The reasons for this are plainly obvious. In 2007 at least 25,000 nuclear weapons as well as 1400-2000 tons of highly enriched uranium (HEU) and separated plutonium capable of producing another 200,000 weapons, are known to exist worldwide. (5) Almost ninety-five percent of this stockpile is found in the United States and Russia; (6) however, more than forty states are believed to possess fissile materials. (7)

For four decades, the principal legal instrument dealing with the spread of nuclear weapons has been the 1969 Non-Proliferation Treaty (NPT). (8) This convention governs the distribution and sale of nuclear technologies and material between nuclear and non-nuclear states and is overseen by the International Atomic Energy Association (IAEA). (9) During the early twenty-first century, however, globalization has markedly facilitated the rise of terrorist groups throughout the world, empowering them to operate transnationally. The effort by these groups to acquire nuclear weapons presents profound challenges for the legal structure erected by the NPT.

Globalization has fundamentally altered the structure of the international community by making all transnational actors--governments of states, peoples, international organizations and multinational corporations--more interconnected and interdependent. (10) The modern proliferation of transnational jet aircraft, inexpensive telephone service, e-mail communication, easy access to vast amounts of computer information, enormous ocean-going vessels, and instant capital flows all make the world more interdependent than ever before. (11) Massive amounts of money, technology, information, people and raw materials move ever more speedily across national borders. Ideas, cultures and values circulate more widely, to more people, with less restraint.

The technologies and processes that make globalization beneficial to societies simultaneously empower sub-national actors and ideological extremists and thus render states more porous to external penetration and more vulnerable to violent disruption. (12) Terrorists, too, can use cell phones, computers, fax machines, e-mail, the internet, monetary transfers, and air transportation to plan, coordinate, and carry out violent attacks against Western societies. (13) This capability of terrorist groups was dramatically demonstrated by the tragic consequences of 9/11, and it was in the immediate aftermath of these events that the threat of nuclear terrorism became soberly evident. Indeed, the recovery of al-Qaeda documents in Afghanistan depicting the design of nuclear weapons and the interception of information regarding meetings between Osama bin Laden and nuclear specialists in August 2001 highlighted the undeniable determination of al-Qaeda to seek ways and means to commit acts of nuclear terrorism. (14)

The study of nuclear terrorism's ramifications for international law and foreign relations is particularly critical given the reality of the threat it now poses. Since September 11, 2001, concern over the possibility that a nuclear terrorist attack could occur has increased significantly. (15) As a result of the expressed desire by terrorist groups to detonate a nuclear device--and the paucity of fissile materials needed to produce one--every effort must be made to counteract the possibility of such an attack occurring. (16) The international community is currently struggling to develop the legal, political and technological means necessary to combat this threat. However, through select modifications to international law and robust enforcement of current nuclear conventions by an empowered IAEA--as well as greater cooperation between governments in initiatives for strengthening nuclear safeguards and policing black market trafficking--threats associated with nuclear terrorism may be diminished.

To address these issues, this study seeks to accomplish three main purposes. First, the study strives to analyze the nature of the threat of nuclear terrorism; second, an effort is made to assess various strategies adopted thus far by the international community to prevent nuclear terrorism from occurring; and third, the study seeks to evaluate and suggest possible recourses for new international actions aimed at deterring terrorist acts involving the use of nuclear materials. Toward these ends, Part II sets the stage by discussing the background relevant to the current threat of nuclear terrorism. Part III then analyzes the dimensions of the nuclear terrorist threat and the multifaceted impact of this threat. Recommendations for policy actions by governments and international institutions are treated in Part IV. Finally, Part V proffers some conclusions for critical reflection.

II. BACKGROUND

Three key factors portend the possibility that nuclear terrorism might actually occur. First, the porous security conditions for storing nuclear weapons and fissile materials in Russia and Pakistan, coupled with the weak safeguards for research reactors worldwide, provide inviting opportunities for terrorists to acquire nuclear materials. Second, a nuclear weapon can be made with relative ease. Third, a global nuclear market has emerged that enhances the prospects for increased proliferation of nuclear materials. These factors magnify the reality of the nuclear terrorism threat. Policymakers in Western states initially concluded that, because of the global nature of the threat, any strategy should focus on countering nuclear terrorism by securing nuclear materials, bolstering efforts to prevent the proliferation of nuclear weapons programs, and criminalizing activities associated with such acts.

Concern over the possibility of nuclear terrorism has its origins in the extensive nuclear arms buildup that took place during the Cold War. Use of nuclear weapons by a terrorist group, however, was considered an unlikely scenario until the events of September 11, 2009 exposed America's vulnerability to attack and politicians discovered the extent of al-Qaeda's nuclear ambitions. (17) The progressive expansion of international trade, transportation, and communication networks that facilitate pervasive international interactions, coincidentally empowered terrorist groups. When these globalization processes encounter poorly secured nuclear weapons and materials in some states, the likelihood of nuclear terrorism becomes an even more pronounced threat to global security.

During the Cold War, the U.S. Central Intelligence Agency (CIA) considered the possibility that the Soviet Union might attempt to commit acts of nuclear terrorism within the United States. As early as 1951, the CIA published its initial major report on this issue entitled, "Soviet Capabilities for Clandestine Attack against the U.S. with Weapons of Mass Destruction and the Vulnerability of the U.S. to Such Attack." (18) This report detailed the ways in which nuclear weapons could be deployed in the United States by both states and non-state actors and highlighted the ease with which such weapons could enter U.S. territory. (19) Throughout the 1960s, the U.S. Atomic Energy Commission analyzed the security of its nuclear reactor facilities and concluded that, "Safeguards programs should ... be designed in recognition of the problem of the terrorist or criminal groups clandestinely acquiring nuclear weapons or materials useful therein." (20) Indeed, these concerns persisted during the 1970s and were amplified by CIA worries that the more than 6,000 nuclear weapons dispersed by the United States throughout NATO countries were highly vulnerable to theft on account of weak security standards at the foreign facilities in which they were being stored. (21)

When the Soviet Union collapsed in the early 1990s, serious concern was aroused over the possibility of "loose nukes" being sold on the global market. With more than 30,000 nuclear weapons dispersed across four former republics of the old Soviet Union--Russia, Ukraine, Belarus, and Kazakhstan--and the disintegration of the Soviet nuclear command, apprehension grew among U.S. policymakers that nuclear weapons might fall into terrorist hands. (22) Thus, the breakup of the former Soviet Union in 1991 raised fears about the disposition and security of that nation's nuclear materials, including its strategic and tactical nuclear weapons. Of more immediate concern was the security of the former Soviet Union's stores of plutonium and enriched uranium, which could be used to make either nuclear weapons or radiological dispersal devices. In order to counter these contingencies, the U.S. government launched the Cooperative Threat Reduction Program in 1991 to help secure and dismantle Russian nuclear weapons and facilities with U.S. Congressional funds. (23) While the threat of "loose nukes" never materialized, reports nevertheless surfaced that nuclear material had gone missing from Russian nuclear stockpiles. (24)

In spite of the emergence of the "loose nukes" threat, the Nuclear Non-Proliferation Treaty remains the chief legal instrument dealing with nuclear issues. This agreement, which entered into force in 1970 and in 2008 counts 189 states as parties, seeks to prevent the proliferation of nuclear arms, promote nuclear disarmament, and encourage the peaceful use of nuclear technology. (25) However, while the Non-Proliferation Treaty bans the transfer of nuclear weapons to any recipients, it does not mention the theft of nuclear weapons or mandate the criminalization by national legislatures of persons trafficking in nuclear weapons or materials. (26) Moreover, lacunae in international law persist regarding the security of nuclear material in storage and the prosecution of non-state actors who attempt to carry out acts of nuclear terrorism. Given the increased logistical and technological capabilities of these non-state actors in recent years, a serious need for such rules became evident.

A. The Cause for Concern

During the last decade, the determination of al-Qaeda to acquire nuclear weapons, the information and communication powers afforded to them by globalization, and the existence of fissile nuclear materials in unstable regions have all contributed to the transformation of the threat of nuclear terrorism from a hypothetical scenario into a policy issue of grave concern. (27) In its examination of the terrorist threats facing the United States after the events of September 11, 2001, the 9/11 Commission averred that, "[p]reventing terrorists from gaining access to weapons of mass destruction must be elevated above all other problems of national security ... [the President] should develop a comprehensive plan to dramatically accelerate the timetable for securing all nuclear weapons material around the world." (28) This report was based on the discovery of documents by the United States describing the extent of al-Qaeda's nuclear ambitions. In 1998, Osama bin Laden declared that the acquisition of nuclear weapons was a "religious duty." (29) Since this time, reports indicate that al-Qaeda has made numerous attempts to purchase nuclear weapons on the black market, but these efforts have been thwarted by supposed sellers scamming al-Qaeda. (30) Indeed, the CIA's Bin Laden Unit has documented what it describes as a "professional" attempt to acquire nuclear weapons by al-Qaeda, which prompted the conclusion that "there could be no doubt after this date [late 1996] that al-Qaeda was in deadly earnest in seeking nuclear weapons. (31) This particular attempt even involved meetings with Pakistani nuclear scientists, as well as calls for other scientists with nuclear expertise to join the fight against the United States. In spite of the disruption of al-Qaeda's network since the War on Terror began in 2001, U.S. officials continue to warn that its members retain the ability to launch terrorist nuclear attacks coordinated from its new bases in Pakistan. (32) As such, the desire of al-Qaeda to conduct massive nuclear attacks against the United States is one of the principal factors that has made nuclear terrorism a real threat in the 21st century.

The danger that al-Qaeda's nuclear ambitions pose to the United States is compounded by the manner in which the processes of globalization have impacted the world. These impacts have not only empowered other purveyors of jihadist violence, but they also have simplified the means by which such terrorists can smuggle and deliver nuclear weapons to their intended targets. Notwithstanding the debate over the pros and cons of globalization, it is widely accepted that, "[t]he technological revolution presupposes global computerized networks and the free movement of goods, information, and peoples across national boundaries." (33) In the same ways that these occurrences facilitate more efficient functioning of daily life in many states, globalization concomitantly creates more and speedier networks through which international terrorist organizations can perpetrate violent attacks. (34)

Technological innovations such as the internet and telecommunication networks that have accompanied globalization allow terrorists to communicate with one another across the globe, and thus contribute to the ease with which they can orchestrate and execute complex missions. (35) With respect to nuclear terrorism, terrorists can now discover the location of fissile materials and plan attacks on nuclear facilities with much greater ease. Meanwhile, they are also able to utilize tools like the internet to disseminate and access information concerning the construction of nuclear devices. (36) As such, globalization has allowed terrorist groups like AI-Qaeda to transform themselves into powerful non-state actors with specialized technological knowledge that can subvert the goals of powerful states. (37)

Moreover, globalization enables terrorist groups to transport nuclear weapons more stealthily from their places of origin to intended targets. As a result of globalization and commercial liberalization, massive amounts of international trade and commerce occur everyday. Given the sheer volume of goods entering all states, the chance of detecting illicit commodities is lower. (38) In the case of the United States, as of late 2008 there were 317 entry points into the country, which makes the volume of goods entering the United States that much more difficult to detect and thoroughly examine. (39) This is significant because, with respect to nuclear materials, only small amounts of easily concealable fissile material are needed to create dangerous devices. Accordingly, physical detection is made more difficult and smuggling nuclear material in large containers becomes more practicable. (40) Electronic detection instruments, while in development and being tested in limited cases, have not yet been fully deployed. (41) Meanwhile, large amounts of illegal drugs and immigrants enter even the most highly industrialized countries like the United States every year, testifying to the ease with which groups could simply smuggle nuclear materials across porous state borders. (42)These developments render the threat of nuclear terrorism a far more serious policy issue than previously acknowledged, as they afford terrorist organizations greater power and easier means to accomplish their nuclear ambitions to destroy western societies. (43) Meanwhile, globalization means that "new threats cannot be contained and controlled within one State" and will consequently require international solutions. (44)

Multinational operating capacity and transportation networks help terrorists overcome traditional barriers to procuring and deploying nuclear materials. In these ways, the forces of globalization more easily enable sub-national actors to seize nuclear materials from poorly guarded plants and storage facilities and transfer them to a site where an explosive device can be constructed. Given these new-found opportunities afforded to terrorist groups, governments must be prepared to work more diligently through international legal channels and mutual initiatives to counter this threat. (45)

III. ANALYSIS OF THE ISSUE

A. Dimensions

The IAEA identifies four major dimensions of nuclear terrorism. As the IAEA defines them, these "malicious acts" are: (1) detonation of a stolen or purchased nuclear weapon; (2) detonation of an improvised nuclear explosive device (IND) made from stolen or purchased nuclear material; (3) sabotage of, or attacks on, installations, locations, or transports containing nuclear material which could result in dispersal; and (4) detonation of a radiological dispersal device (RDD), otherwise known as a "dirty bomb.'' (46) Of these threats, experts consider the detonation of an IND a more likely occurrence than the detonation of an actual nuclear weapon. (47)

The threat of nuclear terrorism has a global dimension. The basic threat scenario is that a terrorist group operating transnationally obtains fissile material from vulnerable sites before transporting it across state boundaries and performing one of the acts described above. However, the desire of terrorist groups to obtain and use these weapons is not the sole concern. …

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Publication information: Article title: Nuclear Terrorism in a Globalizing World: Assessing the Threat and the Emerging Management Regime. Contributors: Joyner, Christopher C. - Author, Parkhouse, Alexander Ian - Author. Journal title: Stanford Journal of International Law. Volume: 45. Issue: 2 Publication date: Summer 2009. Page number: 203+. © 2009 Stanford Law School. COPYRIGHT 2009 Gale Group.

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