Extradition for Nuclear Terrorism—Qualms

The death of Alexander Litvinenko has elevated the profile of polonium-210 to such a degree that a Polish restaurant in the United Kingdom has seen an unprecedented surge in patronage by the mere fact that it is called “Polonium.”^[1] What has been less reported, as detailed by Igor Khripunov and William C. Potter in the San Jose Mercury News, is how the apparent use of a polonium-210 pill as a murder weapon just may fall within the confines of the International Convention for the Suppression of Acts of Nuclear Terrorism [hereinafter Convention].^[2]

As noted by Messrs. Khripunov and Potter, the Convention was adopted by the UN General Assembly in 2005, and has been signed by over 100 nations;^[3] the convention will not come into force until 22 nations have ratified, accepted, approved, or acceded to it. The United States, the United Kingdom, and the Russian Federation are signatories to the Convention, but there have not been enough ratifications for the Convention to come into effect.^[4] Nonetheless, signatory countries have an obligation not to defeat the object and purpose of a treaty prior to it coming into force.^[5] The reason why this nuance matters is because Russia has stated publicly that it will refuse to extradite individuals who are suspected of poisoning Mr. Litvinenko.^[6] Normally, this would not be much of an issue, as extradition relations between the UK and Russia are extremely fractured. The Convention however, contains some language which could oblige Russia to extradite or prosecute such individuals, if poisoning Mr. Litvinenko with polonium is an act which would fall within the Convention.

The Convention states that an offense is committed if a person unlawfully and intentionally “uses in any way radioactive material … with the intent to cause death or serious bodily injury.”^[7] “Radioactive material” is defined by the convention as “nuclear material and other radioactive substances which contain nuclides which undergo spontaneous disintegration (a process accompanied by emission of one or more types of ionizing radiation, such as alpha-, beta-, neutron particles and gamma rays) and which may, owing to their radiological or fissile properties, cause death, serious bodily injury or substantial damage to property or to the environment.”^[8] Polonium qualifies as a radioactive material,^[9] and using it to cause the death of a person certainly seems to be covered by the Convention. Under Article 11 of the Convention, the country in which the alleged offender is present “shall …, if it does not extradite that person, be obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit the case without undue delay to its competent authorities for the purpose of prosecution.”^[10] The offenses in the Convention, however, are extraditable under the Convention, and a member country is obliged, if it will not prosecute the individual, make him or her available for extradition.^[11]

Of course, absent the Convention coming in to force, Russia, other than having a general duty to not frustrate the purpose of treaties and conventions, is not obliged to follow its mandates.

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[1] See, Polonium Name Drives Customers to Restaurant, NPR, Dec. 6, 2006.
[2] Igor Khripunov and William C. Potter, Polonium Mystery Sheds Light on Treaty, San Jose Mercury News, Dec. 26, 2006.
[3] Id.
[4] See Status of Participation by States, UN, last visited December 26, 2006.
[5] See Khripunov, supra note 2; see also Vienna Convention on the Law of Treaties, May 23, 1969, art. 18, U.N.T.S. 1155/331.
[6] See Russia: No Litvinenko Extraditions, CNN.com, Dec. 5, 2006.
[7] International Convention for the Suppression of Acts of Nuclear Terrorism, Sep. 14, 2005, art. 2, para. 1(b)(i).
[8] Id. art. 1, para. 1.
[9] See Polonium, Encyclopaedia Brittanica, 1997.
[10] Convention, art. 11, para. 1.
[11] Id. art. 10, para. 2.