Urs Tinner, who is suspected of involvement in a vast, international nuclear-smuggling ring, appears in a 2009 interview with Swiss TV station SF1
In 2003, the seizure of sensitive nuclear equipment on a ship in an Italian port played a key role in the unraveling of a vast, international smuggling ring led by the Pakistani scientist A.Q. Khan that supplied nuclear technology to some of the world's most dangerous regimes. Prosecuting those involved in this proliferation network, however, has proved difficult. Today none of the people associated with the so-called Khan network remain in prison.
This month, Swiss prosecutors announced that they were having another go at the network. They said that three central players in the Khan ring will finally face charges in the fall related to the sale of nuclear equipment and technical expertise to Iran, Libya and North Korea. The announcement follows a nearly decadelong investigation into Urs Tinner, his brother Marco and their father Friedrich that shows the complexities of nuclear-smuggling cases and the inadequacies of the legal systems in place to prevent them.
Efforts to prosecute black-market proliferators have been hampered by disputes between governments, the reluctance of intelligence agencies to hand over sensitive evidence to prosecutors and a lack of strong export-control laws; in many places, smuggling technology related to the development of nuclear weapons is not even illegal.
In the case of the Tinners, their prosecution has been complicated by the fact that for the final few years they were in the proliferation business, the Tinners were also working as CIA spies. Urs Tinner, who like his brother and father has been released on bail pending charges, claimed in a 2009 interview with Swiss TV station SF1 that he had, with the help of Americans, sabotaged centrifuge equipment sent to Libya, and also tipped off authorities about a delivery of centrifuge parts to Gaddafi's regime. As a result, the U.S. government actively lobbied against the family's prosecution. In 2009, a Swiss parliamentary commission made public a 58-page report that described how the U.S. applied pressure on the Swiss government to destroy evidence collected against the Tinners, which it did on several occasions, on the grounds that the evidence, which included detailed designs of nuclear warheads, was a national-security threat.
The Associated Press has reported that, this time around, Swiss authorities may seek a shortened procedure against the Tinners, under which defendants admit the basic charges against them but face no more than five years' imprisonment.
While the Tinners case shows the delicate balance between the need to protect intelligence sources and the enforcement of international law, there are unfortunately far more spurious reasons why others involved in the Khan network have evaded justice. Khan himself was put under house arrest in 2004 but pardoned later that year by the Pakistani government. Indeed, his status as a national hero because of his role in developing Pakistan's nuclear bomb has made it politically impossible to seek anything more than a minimal punishment against him. In 2009 all restrictions on his movements within Pakistan were lifted. The International Atomic Energy Agency (IAEA), as well as Western intelligence agencies, has been forbidden by Islamabad from interviewing him about his activities.
Khan's close confederate in Malaysia, B.S.A. Tahir, was taken into custody in 2003 by Malaysian police, but he was released in 2008 and exonerated of violating any laws. Malaysia's export controls on nuclear technology were so weak that much of Tahir's activities were not illegal (those laws aren't much stricter today). The same was true of Briton Peter Griffin, who sold material and equipment with the approval of U.K. customs and thus could not be prosecuted (he denies being aware that he was working on enrichment technology).
In Germany, Gotthard Lerch, who provided schematic designs for centrifuges and helped find engineering firms to construct them, was initially charged with treason. But Lerch was arrested in Switzerland, and as part of his extradition the Swiss required the Germans to drop the treason charge. Further serious charges related to the sale of nuclear technology were dropped in part because of the CIA and British intelligence's reluctance to share information with prosecutors. Further compounding matters, the Malaysian government refused to allow Tahir to travel to Germany to testify against Lerch, sending a written testimony instead, which was inadmissible because German law entitles a defendant to cross-examine accusers. South Africa refused to send two other of Lerch's associates to Germany as well. When he was finally convicted in 2008 for minor charges, Lerch was sentenced to time served in pretrial detention and released.
Two veterans of South Africa's defunct nuclear-weapons program, Gerhard Wisser and Daniel Geiges, who set up a factory for Khan to produce centrifuge components, faced charges based on the testimony of a proliferator turned state's witness, Johan Meyer. But when prosecutors asked for the help of U.S. experts with the case, the U.S. government insisted the trial be held behind closed doors, which contradicted South African law. In the end, South Africa reached plea bargains with Wisser and Geiges amid concerns that their case was too weak to risk trial.
Nuclear proliferation is a crime that pays well. Those involved in the Khan network were made very wealthy for their efforts, and the inability of the international community to effectively punish them has resulted in a missed opportunity to provide a deterrent against future black-market salesmen. In 2004 and in the wake of the Khan scandal, the U.N. Security Council passed Resolution 1540, which mandated that all states enact legislation criminalizing trafficking in weapons of mass destruction; many countries have yet to enact the legislation, and enforcement mechanisms remain poor around the world. Some commentators such as Catherine Collins and Douglas Frantz, two journalists who recently published a book on the Tinners case, say much more commitment is needed — perhaps in the form of national and international legal regimes that make trafficking in weapons of mass destruction a crime against humanity. An international committee headed by former IAEA head Hans Blix has argued that all states should conduct audits of their export-control enforcement agencies (coast guard, border control and military) to ensure they can carry out their tasks. Certainly, expanded cooperation between intelligence agencies and law enforcement is needed, as is an effort to instill a culture across private industry that rejects the sale of proliferation-sensitive technology and expertise as not simply mischievous but evil.
Whatever happens to the Tinners this autumn, their punishment alone certainly won't be enough to ensure that the Khan network — or something similar to it — is forever a thing of the past.
Harrell is a research associate at the Project on Managing the Atom at Harvard University's Belfer Center for Science and International Affairs and a Boston-based reporter for TIME.