By Talgat Toleubayev
UNICRI’s Regional Coordinator for South East and Eastern Europe, Talgat Toleubayev, discusses current challenges in prosecuting CBRN crimes and introduces the Prosecutor’s Guides to Chemical, Biological, Radiological and Nuclear crimes.
The EU CBRN Centre of Excellence (CoE) is a global Initiative funded and implemented by the European Union as part of its goal to promote peace, stability and conflict prevention. The aim of the Initiative is to mitigate risks and strengthen an all-hazards security governance in Partner Countries of the EU following a voluntary and demand-driven approach. Supported through the European Union’s Neighbourhood, Development and International Cooperation Instrument (NDICI) – Global Europe, the Initiative represents the EU’s largest civilian external security program.
Recent reports from international organizations emphasize the growing global risks and threats arising from the increasing nexus between crime and terrorism. This is further complicated by ongoing global conflicts and regional instabilities involving nuclear states, uncontrolled territories, and the abundance of Chemical, Biological, Radiological, and Nuclear (CBRN) materials rooted in the historical heritage of some countries. The presence of malicious technologies and instructions in the dark web and social networks, coupled with real cases of illicit trafficking of CBRN materials, demands increased attention from countries to address CBRN safety and security.
CBRN threats pose a unique and severe danger to global security, requiring robust international frameworks to address and prosecute those involved in CBRN-related crimes. The potential for mass casualties and catastrophic consequences underscores the necessity for effective planning, organisation, and communication, often involving interactions across regions and countries. These crimes are further complicated by the dual-use nature of equipment and industries, as well as the ease of acquisition of a number of high-risk chemicals, biological pathogens/toxins, and radioactive materials out of regulatory control.
In order to detect CBRN materials that are outside regulatory control, countries establish a robust system equipped with sophisticated detection and identification tools. These tools are strategically deployed at international border crossing points, airports, critical infrastructure, industry, forensics laboratories, and other regulatory authorities. They complement the traditional “triple G” infrastructure (Guards, Gates, and Guns) designed to ensure the physical security of CBRN materials by introducing an additional “G” – Gadgets.
Challenges in Prosecuting CBRN Crimes
The overall annual cost of maintaining fully functioning prevention, detection, and response capabilities to address CBRN incidents varies widely based on a country’s budget. Calculating the return on investment for such a robust system in a fully functional mode can be challenging. The accuracy and precision of this equipment can be easily questioned by a skillful defense attorney dedicated to defending the client by any means necessary.
Due to the absence of previous experience with real CBRN criminal cases, countries find it challenging to test their investigation and prosecution capabilities for such incidents. They may lack proper legislation and relevant articles in their criminal codes to punish criminals and prosecute these crimes. Ultimately, when a CBRN incident occurs, potentially posing serious repercussions for the national security of any given country, relevant authorities realize that investigation and prosecution constitute the weakest link in the entire chain of prevention, detection, and response. This vulnerability was identified by law enforcement and forensics experts following the completion of a European Union (EU) project aimed at enhancing the CBRN forensics capabilities of ten countries in the South East and Eastern Europe (SEEE) region, within the framework of the EU CBRN Risk Mitigation Centres of Excellence (CoE) Initiative.
Investigators, while possessing good knowledge and experience in prosecuting traditional crimes, may lack expertise in dealing with cases involving the contamination of the surrounding environment with hazardous materials. Managing a crime scene contaminated with CBRN materials requires adherence to additional precautions and measures. To ensure the successful investigation and prosecution of CBRN criminal cases, we encourage relevant actors to follow specific rules, some of which are part of traditional investigation practices. The collection of contaminated evidence and the integrity of hazardous materials are paramount for acceptance by a court of justice.
The early identification of indicators of CBRN crimes requires a simple understanding of their characteristics and how they might be manipulated to cause harm. Technical assistance from relevant experts and scientific support from laboratories to the investigation will have a significant impact on the result of the criminal case. The preparation of subject matter experts, scientists and witnesses to the court hearing will support the acceptability of the evidence. Joint investigative mechanisms, joint interview methods, mutual legal assistance, and support from international organisations and partners may make a big difference in the end.
Interoperability and Cooperation
Moreover, the dual-use nature of many CBRN materials adds complexity to legal proceedings, as distinguishing between legitimate and illicit purposes can be challenging. The development of effective legal frameworks requires continuous adaptation to emerging threats, technological advancements, and evolving geopolitical landscapes.
Prosecuting crimes involving CBRN materials poses unique challenges due to the clandestine nature of these activities and the technical expertise required to investigate and attribute responsibility. Gathering credible investigative intelligence and evidence in a timely manner is often complicated by the covert nature of perpetrators.
Successful prosecution relies on the interoperability between national policing bodies, intelligence agencies, and prosecutorial teams. Ensuring effective information sharing among these entities is crucial. Strengthening cooperation among these national bodies will significantly increase the likelihood of prosecuting those responsible for CBRN crimes at any stage of the crime lifecycle.
Any CBRN-related incidents are considered to have a low probability but a high impact due to the harmful and destructive nature of hazardous materials to human health. Journalists are often drawn to cover such news, sometimes revealing critical information and evidence that should remain confidential. As a result, prosecuting authorities must formulate a very comprehensive media and communication strategy to channel the right messages to the population while safeguarding confidential information from journalists to maintain the integrity of the criminal case.
In the final analyses, it is essential to consider trial and appellate issues in the context of prosecution and adjudication. Whether an appeal is initiated by the prosecuting authority or the defendant, the scope of the appeal will depend on the specific issues subject to review. From the outset of the case, subject matter experts should be informed that their role and assistance may extend through the trial into the appellate stage. Additional experts may be appointed during the appellate process and further investigation by law enforcement may occur.
The depicted needs and gaps may be a reality in some countries and regions. Criminals and terrorist groups are frequently drawn to this lucrative business of illicit trafficking of CBRN materials. It is so alluring that even after conviction and serving a sentence, some criminals continue engaging in it right after getting out of prison and get caught again. Given their daily experience in this field, subject matter experts from the SEEE region recommended addressing the prosecution component by developing guidance manuals.
Introducing the Prosecutor’s Guides to Chemical, Biological, Radiological and Nuclear Crimes
In response to this regional request, guidance manuals were developed under a series focusing on “from the CBRN crime scene to the courtroom”. “A Prosecutor’s Guide to Chemical and Biological Crimes” was published in 2022 in six different languages. The second publication, titled “Prosecutor’s Guide to Radiological and Nuclear Crimes” is scheduled for release in early 2024. Funded by the European Union, both guidance manuals have been developed under the coordination of the United Nations Interregional Crime and Justice Research Institute (UNICRI) in close cooperation with the Organization for the Prohibition of Chemical Weapons (OPCW), the International Atomic Energy Agency (IAEA), the United Nations Office on Drugs and Crime (UNODC), the Nuclear Forensics Laboratory of the European Commission’s Joint Research Centre (JRC), and the International Association of Prosecutors (IAP) and relevant subject matter professionals supported by the EU CBRN CoE Initiative. Several other international organizations and partners took part in the review process.
The Guides aim to assist prosecutors, investigators and relevant law enforcement and judicial authorities in the successful investigation, prosecution and adjudication of incidents involving the deliberate acquisition, stockpiling, production, transfer, use or misuse of CBRN materials. The Guide is a non-binding, high-level guidance document, covering a wide spectrum of key elements necessary to guide prosecution authorities in bringing the criminal case from the crime scene to the courtroom.
UNICRI developed a comprehensive capacity-building and training package to integrate the provisions outlined in the Guide into the professional duties of prosecutors. The training programme comprises a combination of theoretical and practical training components and is structured around the following four main courses:
- Table Top Exercise
- Building a case for the prosecution of CBRN crimes
- Mock Trial / Moot Court
- Train-The-Trainer
The training package is designed to provide participants with insights into the entire investigative process, starting from the crime scene contaminated with CBRN materials to the eventual prosecution and adjudication of the crime in the courtroom. While the training is intended primarily for prosecutors, it is also relevant for other judicial and investigative entities due to the interdisciplinary nature of the prosecutorial work. This includes law enforcement authorities leading the investigation, prosecution, and adjudication.
Implemented as part of the European Union Chemical, Biological, Radiological and Nuclear Risk Mitigation Centres of Excellence (EU CBRN CoE), this ongoing project is a global initiative funded by the European Union to promote peace, stability, and conflict prevention. The initiative seeks to mitigate risks and strengthen all-hazards security governance in Partner Countries of the EU, following a voluntary and demand-driven approach. Supported through the European Union’s Neighbourhood, Development and International Cooperation Instrument (NDICI) – Global Europe, the initiative represents the EU’s largest civilian external security program.
Talgat Toleubayev is the Regional Coordinator – South East and Eastern Europe of the CBRN Risk Mitigation and Security Governance Programme at the United Nations Interregional Crime and Justice Research Institute (UNICRI). In this position since 2019, he coordinates activities and projects for 10 countries in South East and East Europe region within the framework of the European Union’s CBRN Risk Mitigation Centres of Excellence Initiative. He also coordinates the development of a series of action-oriented guidance documents and the capacity building and training packages of the UNICRI, aimed at successful investigation, prosecution, and adjudication of CBRN crimes. Prior to joining the United Nations, he worked for more than 16 years at the headquarters of the International Criminal Police Organization – INTERPOL. He is a retired police lieutenant-colonel.
