Punishing A.Q. Khan

How the world can make Pakistan's notorious nuclear smuggler pay for his crimes -- since Islamabad isn't going to.

BY LEONARD S. SPECTOR | SEPTEMBER 10, 2009

Last week, a Pakistani court lifted the requirement that A.Q. Khan, mastermind of history's most notorious international nuclear-smuggling ring, remain under police escort when traveling about the country. With Khan having been pardoned of any crimes arising from his nuclear dealings by former Pakistani President Pervez Musharraf, and having been released after five years under house arrest last February, ending the escort requirement will leave Khan a free man, able once again to enjoy to the fullest the profits he made from his misdeeds. A higher court is reviewing the decision, but at best, it would seem, the police escort might be reinstated.

The rest of the world, however, does not have to go along with Pakistan's unseemly leniency. There are ways to punish Khan from outside Pakistan for his reckless (and highly profitable) activities, which supported nuclear weapon ambitions in Iran, Libya, and North Korea by providing equipment for enriching uranium to weapons grade and, in at least one case, details on how to fabricate a nuclear weapon.

The most potent response would be for the U.N. Security Council to impose a freeze of Khan's assets worldwide, potentially depriving him of his ill-gotten wealth. Three Security Council resolutions that seek to constrain Iran's nuclear program have demanded that Iran halt its uranium enrichment program and have required all U.N. member states -- including Pakistan -- to freeze the assets of persons designated by the Security Council "as being engaged in, directly associated with or providing support for Iran's proliferation sensitive nuclear activities." Because Tehran is currently utilizing technology that Khan provided in the country's U.N.-proscribed uranium-enrichment program, in legal terms Khan's offense can be considered a continuing one, providing the Security Council with ample basis to designate him and immobilize his financial resources.

The Security Council resolutions also bar designated individuals from traveling to any U.N. member state. If Khan were added to the list of designated individuals, this could help ensure he does not attempt to meet with former members of his ring and resuscitate his nuclear smuggling operations.

The Security Council's action, moreover, would be a powerful expression of the international community's condemnation of Khan's behavior, a painful rebuke that in itself would be a form of punishment. In addition, the asset freeze and travel ban might help deter future enablers of Iran's nuclear aspirations.

As a second avenue for penalizing Khan, Germany, Britain, South Africa, Switzerland, and the United States have each prosecuted individuals who violated national export-control laws while working for the Khan nuclear-supply network. These cases could be reopened or new cases brought to include Khan as a co-conspirator. Extraditing Khan from Pakistan may be politically impractical, but issuance of an Interpol "red notice," based upon prosecuting states' arrest warrants, could serve as the basis for his provisional arrest wherever he might travel outside Pakistan, pending his extradition. (The red notice enables any country to provisionally arrest him, pending his extradition to a state where he is the subject of a prosecution.)

Civil litigation could be another avenue for punishing Khan. Extensive evidence, including statements by Musharraf, establishes that Khan sold Iran uranium-enrichment centrifuge technology. The core technology was the property of Urenco, the British-Dutch-German consortium that developed the technology, as can be readily demonstrated by a comparison of the Urenco design and technical data from the International Atomic Energy Agency's (IAEA's) inspections of Iran's centrifuges. Because Urenco never authorized Khan to possess this highly classified technology, these facts provide ample basis for Urenco to sue Khan for misappropriation of trade secrets.

Although Khan's unauthorized taking of the technology occurred in the 1970s, only in recent years has sufficient evidence emerged via Khan's exposure and the IAEA inspections in Iran to establish the trade-secret claim in a court of law. This should excuse the long delay in bringing the suit. If Urenco were successful before a Dutch or British court, executing any judgment in states where Khan's assets were held might prove a challenge, but it is one that is not uncommon in international litigation and often overcome.

Khan's actions are not considered crimes against humanity or war crimes, in part because -- most fortunately -- his activities have not caused mass suffering. But there is a grave risk that they might lead to catastrophe in the future. One legacy of the latest developments in the Khan imbroglio should be intensified attention to making nuclear technology smuggling in violation of national laws an international crime.

In the meantime, guilty of unjust enrichment in all senses of the phrase, Khan can and should be made to pay for his actions.