VZCZCXYZ0001
PP RUEHWEB

DE RUEHC #8936 3221417
ZNR UUUUU ZZH
P 181411Z NOV 09
FM SECSTATE WASHDC
TO RUEHTA/AMEMBASSY ASTANA PRIORITY 0000
INFO RUEHUNV/USMISSION UNVIE VIENNA PRIORITY 0000

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