"Nations that supply terrorists with nuclear secrets or material should be prosecuted by a special tribunal," says outgoing Dutch Prime Minister Jan Peter Balkenende. And he believes the ideal location for such an international nuclear court would be The Hague. But, isn't there already an international court in The Hague with the power to try international lawbreakers?

By Thijs Bouwknegt

Mr Balkenende made his proposal at the two-day international nuclear security summit currently underway in Washington, DC. US President Barack Obama wants concrete international agreements on securing nuclear material and the 47 heads of state attending the summit are also discussing ways to track nuclear material and prevent its being smuggled.

"Amazed"
Marcel Brus, professor of international public law at the University of Groningen, says he was amazed by Mr Balkenende's plan: "We were under the impression that a general legal adviser would be attached to the Cabinet Office after the international legal debacle over [Dutch government support for the US led invasion of - ed.] Iraq. But this plan - when you consider international law - is a non-starter".

With several international tribunals already established in The Hague, and empowered to try war criminals and terrorists, is there really a need for a special tribunal - as suggested by Mr Balkenende - to be created just to try nations that break international nuclear agreements?

Agreeing to be bound
The International Court of Justice in The Hague already has the authority says Professor Brus, "The ICJ can try states that break international nuclear laws but the court's authority is limited by the fact that states must first agree to submit to the ICJ's jurisdiction". 

The professor points out that some states will never give permission to be bound by a nuclear court's jurisdiction, noting that "They are the very ones that are under discussion. Countries that possess nuclear material will never volunteer to be bound by the authority of an international nuclear court". 

Premature and without basis
Mr Balkenende's suggestion appears to be very premature and politically inspired. In practice, there is no international legal basis for a nuclear tribunal and there is almost no international law on the subject. There are also no international agreements regarding jurisprudence on illegal nuclear deals. 

Professor Brus believes that prosecution by a nuclear tribunal would only be possible through a UN Security Council resolution. The Security Council would have to take a central role and determine how the world deals with a state that provides terrorists or criminal organisations with nuclear secrets or material. All this, as he points out, "would be quite a revolution in international law."

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