![Sample our Politics & International Relations journals, sign in here to start your FREE access for 14 days]({"type":"image" , "src" : "/sda/5947/TOC-Subject-Sample-2021-Politics-International-Relations.jpg"})
ABSTRACT
This article seeks to provide an original approach to weapons of mass destruction (WMD)-related illicit trade by drawing on criminology and focusing on the transactional level. Specifically, the article discusses the “rational-choice” model as a way to understand an entity’s involvement in illicit trade, and considers also the limitations of this approach, as well as the role that opportunity plays in an actor’s decision to engage in illicit trade. The article draws the conclusion that the prospects of deterring illicit trade using export controls and related criminal sanctions are limited. Beyond the clear limitations of the rational-choice model, the prospects of deterring illicit WMD trade are limited by the low levels of certainty in export-control enforcement, something that the criminology literature suggests is of greater importance than severity of punishment in deterring crime. Nonproliferation successes are more likely to be found in further efforts to develop tools to address proliferation opportunities, an area that has already seen much work. Efforts to further raise illicit WMD-related trade from the realms of “invisible crime” are necessary, including further conceptual research on illicit trade.
Notes
1 The term “proliferator” is used throughout to refer to individuals and entities involved in illicit trade in WMD- or missile-relevant goods, rather than to proliferating states.
2 For example, the list of proliferating states that have used illicit procurement to develop nuclear programs includes, but is not limited to, China, India, Iran, Iraq, Israel, Libya, North Korea, Pakistan, South Africa, the Soviet Union, and Syria.
3 “Crimes,” in turn, are defined as “certain non-approved acts legislated against and, by due process of the law, punished.” Criminalization is said to reflect the state’s decisions “to regulate, control, and punish selectively.” Katheryn Chadwick and Phil Scraton, “Criminalization,” in Eugene McLaughlin and John Muncie, eds., The SAGE Dictionary of Criminology (London: SAGE, 2013), p. 102.
4 UN Security Council 1540, S/RES/1540, OP 3, April 28, 2004, emphasis added, <www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/1540(2004)>.
5 See website of the Security Council Committee established pursuant to Resolution 1540 (2004), “National Implementation,” undated, <www.un.org/en/sc/1540/resolutions-committee-reports-and-SC-briefings/security-council-resolutions.shtml>.
6 These extraterritorial elements were first seen in the 1990s and expanded dramatically around 2010. Matthias Herdegen, Principles of International Economic Law (Oxford: Oxford University Press, 2013), p. 79.
7 P5+1 (China, France, Russia, United States, and United Kingdom) and Iran, “See Annex II—Sanctions-Related Commitments,” October 18, 2015, <www.state.gov/documents/organization/245320.pdf>.
8 See, for example, the recent United Nations Security Council Resolution 2375, which imposes restrictions on sales to North Korea of natural gas and oil and export from North Korea of textiles. UN Security Council 2375, S/RES/2375, September 11, 2017, <https://undocs.org/S/RES/2375(2017)>. Earlier resolutions imposed restrictions on other business activities, including United Nations Security Council Resolution 2371, which imposes a ban on North Korean sales of coal, iron and lead ores, and seafood. UN Security Council 2371, S/RES/2371, August 5, 2017, <https://undocs.org/S/RES/2371(2017)>. A recent US Executive Order authorized sanctions against entities operating in an expanded variety of North Korean business sectors including the construction, energy, fishing, information technology, manufacturing, medical, textiles, and transportation industries. White House Office of the Press Secretary, “Presidential Executive Order on Imposing Additional Sanctions with Respect to North Korea,” September 21, 2017, <www.whitehouse.gov/the-press-office/2017/09/21/presidential-executive-order-imposing-additional-sanctions-respect-north>.
9 See, for example, Scott Sagan, “Why Do States Build Nuclear Weapons? Three Models in Search of a Bomb,” International Security, Vol. 21, No. 3 (1996–97), pp. 54–86; Jacques Hymans, Achieving Nuclear Ambitions: Scientists, Politicians and Nuclear Proliferation (Cambridge, UK: Cambridge University Press, 2012).
10 See, for example, Lyudmila Zaitseva and Kevin Hand, “Nuclear Smuggling Chains: Suppliers, Intermediaries and End-Users,” American Behavioral Scientist, Vol. 46, No. 6 (2003), pp. 822–44.
11 See, for example, International Institute for Strategic Studies, Nuclear Black Markets: A.Q. Khan and the Rise of Proliferation Networks—A Net Assessment (London: Routledge, 2005).
12 See, for example, Ian J. Stewart and Daniel Salisbury, “Non-state Actors as Proliferators: Preventing Their Involvement,” Strategic Trade Review, Vol. 2, No. 3 (2016), pp. 5–26; Daniel Salisbury, “Trade Controls and Non-proliferation: Compliance Costs, Drivers and Challenges,” Business and Politics, Vol. 15, No. 4 (2013), pp. 529–51.
13 Stewart and Salisbury, “Non-state Actors as Proliferators,” pp. 14–15.
14 “Innocent” proliferators are defined as those who are aware of the rules governing transfers of nuclear-related goods, but “believe that they have done nothing wrong. In fact, they are often unaware that they may have done something wrong until they are alerted by the national authority.” “Ignorant” proliferators “do not possess an understanding of the regulations and controls, proliferation risks, and the broader social and political implications of their actions.” Ibid.
15 “Indifferent” proliferators “understand what they have done, and they know it is probably wrong, but do not care.” “Ideological” proliferators “clearly understand that their actions are ‘wrong’ either in a legal or moral sense,” but conduct these transactions in order to help ensure the recipient program’s success, which they believe is right, and sometimes to counter elements of the nonproliferation regime which they believe are unfair or illegitimate. Ibid.
16 Aaron Arnold, “A Resilience Framework for Understanding Illicit Nuclear Procurement Networks,” Strategic Trade Review, Vol. 3, No. 4 (2017), pp. 3–23.
17 Victor Jupp, Pamela Davies, and Peter Francis, “The Features of Invisible Crime,” in Victor Jupp, Pamela Davies, and Peter Francis, eds., Invisible Crimes: Their Victims and Their Regulation (London: Palgrave Macmillan, 1999), p. 5.
18 Victor Jupp, “Hidden Crime,” in Eugene McLaughlin and John Muncie, eds., The SAGE Dictionary of Criminology (London: SAGE, 2013), p. 220.
19 For example, the US government does not release export control crime statistics. John Shiffman, Operation Shakespeare: The True Story of an Elite International Sting (New York: Simon & Schuster, 2015), p. 59.
20 Jupp, Davies, and Francis, “The Features of Invisible Crime,” p. 5. “Moral panic” has been defined as an “exaggerated mass media-led social reaction to what were initially minor acts of social deviance,” e.g., the mass media sensationalizing reports of street crimes, such as muggings. Steve Bruce and Steven Yearley, The SAGE Dictionary of Sociology (London: SAGE, 2006), p. 203; Allan G. Johnson, The Blackwell Dictionary of Sociology: A User’s Guide to Sociological Language (Oxford: Wiley-Blackwell, 2000) p. 201.
21 A term used in Jupp, Davies, and Francis, “The Features of Invisible Crime,” p. 5.
22 Defined as “a type of crime in which there is no identifiable victim who has suffered harm or loss.” Mark S. Davis, The Concise Dictionary of Crime and Justice (Thousand Oaks, CA: SAGE, 2002)
23 Cahal Milmo, Andy McSmith, and Nikhil Kumar, “Revealed: UK Government let British Company Export Nerve Gas Chemicals to Syria,” The Independent, September 1, 2013, <www.independent.co.uk/news/uk/politics/revealed-uk-government-let-british-company-export-nerve-gas-chemicals-to-syria-8793642.html>.
24 Edwin H. Sutherland, “White Collar Criminality,” American Sociological Review, Vol. 5, No. 1 (1940), p. 1.
25 Sutherland quoted in Michael L. Benson and Sally S. Simpson, Understanding White-Collar Crime: An Opportunity Perspective (Abingdon, UK: Routledge, 2009) p. 5.
26 Steve Tombs and Dave Whyte, “White Collar Crime,” in Eugene McLaughlin and John Muncie, eds., The SAGE Dictionary of Criminology (London: SAGE, 2013), pp. 492–94.
27 Export control violations have largely not featured in the literature on white-collar crime—one single exception is Bruce Zagaris, International White Collar Crime: Cases and Materials (Cambridge, UK: Cambridge University Press, 2010), pp. 183–218.
28 Benson and Simpson, Understanding White-Collar Crime, p. 67.
29 A summary of these approaches is found in John Muncie, “Contemporary Criminology: Crime and Strategies of Crime Control,” in John Muncie and David Wilson, eds., Student Handbook of Criminal Justice and Criminology (Abingdon, UK: Routledge-Cavendish, 2004), p. 4.
30 Ibid.
31 Stewart and Salisbury, “Non-state Actors as Proliferators.”
32 Sheila Jackson Lee, prepared statement for the Joint Hearing of Sub-Committees of the Committee on Foreign Affairs, US House of Representatives, “A.Q. Khan’s Nuclear Wal-Mart: Out of Business or Under New Management?” 110th Cong., 1st sess., June 27, 2007, p. 49.
33 William Maclean and Ben Blanchard, “Exclusive: Chinese trader Accused of Busting Iran Missile Embargo,” Reuters, March 1, 2013, <www.reuters.com/article/us-china-iran-trader/exclusive-chinese-trader-accused-of-busting-iran-missile-embargo-idUSBRE9200BI20130301>.
34 See, for example, John Park and Jim Walsh, “Stopping North Korea, Inc.: Sanctions Effectiveness and Unintended Consequences,” MIT Security Studies Program Report, August 2016, p. 31, <www.brookings.edu/events/stopping-north-korea-inc/>.
35 For some of Khan’s statements to this effect, see Stewart and Salisbury, “Non-state Actors as Proliferators,” p. 11.
36 Shiffman, Operation Shakespeare, p. 88.
37 Discussion with export compliance professionals.
38 German export control specialist Sibylle Bauer has proposed a typology of different penalties that violators could face, including administrative penalties (fines, loss of licenses, export privileges, property rights, closure of company, and mandatory compliance training) and criminal penalties (fines and prison sentences). Sibylle Bauer, “WMD-Related Dual-Use Control Offenses in the European Union: Penalties and Prosecutions,” Non-proliferation Paper No. 30, July 2013.
39 Raymond Paternoster and Sally Simpson, “Sanctions Threats and Appeals to Morality: Testing a Rational Choice Model of Corporate Crime,” Law & Society Review, Vol. 30, No. 3 (1996), p. 553.
40 See, for example, James Q. Wilson and Allan Abrahamse, “Does Crime Pay?” Justice Quarterly, Vol. 9, No. 3 (1992), pp. 359–77; Pierre Tremblay and Carlo Morselli, “Patterns in Criminal Achievement: Wilson and Abrahamse Revisited,” Criminology, Vol. 38, No. 2 (2000), pp. 633–57.
41 Paula A. DeSutter, testimony before the US–China Commission, “China’s Record of Proliferation Activities,” 108th Cong., 1st sess., July 24, 2003.
42 Aaron Edelstein, “Rethinking Conceptual Definitions of the Criminal Career and Serial Criminality,” Trauma, Violence and Abuse, Vol. 17, No. 1 (2016), p. 66.
43 Eugene McLaughlin, “Deterrence,” in Eugene McLaughlin and John Muncie, eds., The SAGE Dictionary of Criminology (London: SAGE, 2013), p. 130.
44 Lawrence Freedman, Deterrence (Cambridge, UK: Polity, 2004), p. 60.
45 Ibid.
46 Mark C. Stafford and Mark Warr, “A Reconceptualization of General and Specific Deterrence,” Journal of Research in Crime and Delinquency, Vol. 30, No. 2 (1993), p. 123.
47 Ibid.
48 Ibid.
49 Neil A. Gunningham, Dorothy Thornton, and Robert A. Kagan, “Motivating Management: Corporate Compliance in Environmental Protection,” Law & Policy, Vol. 27, No. 2 (2005), p. 290.
50 Ibid.
51 See, for example, David Albright, Paul Brennan, and Andrea Scheel Stricker, “Detecting and Disrupting Illicit Nuclear Trade after A.Q. Khan,” Washington Quarterly, Vol. 33, No. 2 (2010), p. 95; Leonard Spector and Egle Murauskaite, “Countering Nuclear Commodities Smuggling,” CNS Occasional Paper No. 20 (2014), pp. 127, 187.
52 Daniel S. Nagin and Greg Pogarsky, “Integrating Celerity, Impulsivity, and Extra-legal Sanction Threats into a Model of General Deterrence: Theory and Evidence,” Criminology, Vol. 39, No. 4 (2001), p. 865.
53 Michael Tonry, “Learning from the Limitations of Deterrence Research,” Crime and Justice, Vol. 37, No. 1 (2008), p. 279.
54 This study explored deterrence in relation to antitrust violations. Sally Simpson and Christopher S. Koper, “Deterring Corporate Crime,” Criminology, Vol. 30, No. 3 (1992), pp. 347–76.
55 Tonry, for example, suggests that there is evidence that “promptness” trumps “severity.” Tonry, “Learning from the Limitations of Deterrence Research,” p. 280. Nagin and Pogarsky suggest that tests of the celerity effect are scant. Nagin and Pogarsky, “Integrating Celerity, Impulsivity, and Extra-legal Sanction Threats into a Model of General Deterrence,” p. 865.
56 Cheng’s case saw a sentencing enhancement from three years to nine years.
57 Immigrations Customs and Enforcement, “Chinese National Sentenced to 9 years for Providing US Goods to Iranian Nuclear Program,” January 27, 2016, <www.ice.gov/news/releases/chinese-national-sentenced-9-years-providing-us-goods-iranian-nuclear-program>.
58 Malaysian Government, “FAQ—Strategic Trade Act,” undated, <www.matrade.gov.my/faq/708-faq-strategic-trade-act>.
59 Arnold, “A Resilience Framework for Understanding Illicit Nuclear Procurement Networks.”
60 Benson and Simpson, Understanding White-Collar Crime, p. 68.
61 Ibid., pp. 71–72.
62 Kagan, Robert A. and John Scholz, “The ‘Criminology of the Corporation’ and Regulatory Enforcement Strategies,” in Keith Hawkins and John Thomas, eds., Enforcing Regulation (Boston: Kluwer Nijhoff, 1984), pp. 67–95.
63 Herbert A. Simon, Administrative Behavior, 4th edn. (New York: Free Press, 1997), p. 93.
64 Benson and Simpson, Understanding White-Collar Crime, p. 55.
65 A salesman responsible for the firm’s trade with Iran allegedly was “angry to see his bonuses disappearing,” and was “causing lots of trouble” for the firm before the company’s president intervened. US Embassy Beijing, “NORINCO Claims to be Forgoing Sales to Iran,” No. 07BEIJING2896, April 30, 2007, <https://wikileaks.org/plusd/cables/07BEIJING2896_a.html>.
66 See, for example, Edgar H. Schein, Organizational Culture and Leadership, 4th edn. (San Francisco, CA: Jossey-Bass, 2010)
67 Stewart and Salisbury, “Non-state Actors as Proliferators,” p. 14.
68 Steven H. Gifis, Dictionary of Legal Terms: A Simplified Guide to the Language of Law (New York: Barron, 2008), p. 337; Jonathon Law, ed., A Dictionary of Law (Oxford: Oxford University Press, 2015), p. 413
69 Shiffman, Operation Shakespeare, p. 57.
70 Bauer, “WMD-Related Dual-Use Control Offenses in the European Union.”
71 Shiffman, Operation Shakespeare, p. 57.
72 Josh Meyer, “Obama’s Hidden Iran Deal Giveaway,” Politico, April 24, 2017, <www.politico.com/story/2017/04/24/obama-iran-nuclear-deal-prisoner-release-236966>.
73 Ibid.
74 Robert Baldwin, Martin Cave, and Martin Lodge, Understanding Regulation, 2nd edn.(Oxford: Oxford University Press, 2013) p. 228.
75 Benson and Simpson, Understanding White-Collar Crime, p. 237.
76 Albright, Brennan, and Scheel Stricker, “Detecting and Disrupting Illicit Nuclear Trade after A.Q. Khan,” p. 96.
77 Eben Harrell, “Nuclear Proliferation: The Crime with No Punishment?” Time, September 16, 2011, <http://content.time.com/time/world/article/0,8599,2092585,00.html>.
78 See Richard H. Speier, Brian G. Chow, and S. Rae Starr, Nonproliferation Sanctions (Santa Monica, CA: RAND, 2001).
79 Compare, for example, the cases of the large Chinese state-owned enterprise NORINCO (China North Industries Group Corporation) and Karl Lee. Center for Nonproliferation Studies, “NORINCO Delegation Visits United States to Discuss Export Control Issues and Sanctions; Talks with CNS Researchers,” International Export Control Observer, Vol. 7, (2006), pp. 21–23; Daniel Salisbury and Ian J. Stewart, “Li Fang Wei (Karl Lee),” Project Alpha Proliferation Case Study Series, May 19, 2014.
80 See for example the case of NORINCO. Center for Nonproliferation Studies, “NORINCO Delegation Visits United States to Discuss Export Control Issues and Sanctions.”
81 Experiences of the author conducting outreach to UK industry, 2011–14.
82 See Salisbury, “Trade Controls and Non-proliferation,” p. 541.
83 Sally S. Simpson and Melissa Rorie, “Motivating Compliance: Economic and Material Motives for Compliance,” in Christine Parker and Vibeke Lehmann Nielsen, eds., Explaining Compliance: Business Responses to Regulation (Cheltenham, UK: Edward Elgar, 2011), pp. 59–77.
84 Judith Van Erp, “Reputational Sanctions in Private and Public Regulation,” Erasmus Law Review, Vol. 1, No. 5 (2008), pp. 145–62.
85 Nagin and Pogarsky, “Integrating Celerity, Impulsivity, and Extra-legal Sanction Threats into a Model of General Deterrence,” p. 873.
86 Salisbury, “Trade Controls and Nonproliferation,” p. 544.
87 Nagin and Pogarsky, “Integrating Celerity, Impulsivity, and Extra-legal Sanction Threats into a Model of General Deterrence,” p. 865.
88 Clive Hollin, “Opportunity Theory,” in Eugene McLaughlin and John Muncie, eds., The SAGE Dictionary of Criminology (London: SAGE, 2013), p. 298.
89 Muncie, “Contemporary Criminology, Crime and Strategies of Crime Control,” p. 13
90 Hollin, “Opportunity Theory,” p. 298.
91 David O. Friedrichs, Trusted Criminals: White Collar Crime in Contemporary Society (Belmont, CA: Cengage Learning, 2009), p. 239.
92 Benson and Simpson, Understanding White-Collar Crime, p. 254.
93 Ibid.
94 Hollin, “Opportunity Theory,” p. 299.
95 Benson and Simpson, Understanding White-Collar Crime, p. 102.
96 Daniel Salisbury and David Lowrie, “Targeted: A Case in Iranian Illicit Missile Procurement,” Bulletin of the Atomic Scientists, Vol. 69, No. 3 (2013), pp. 23–30.
97 Anderson argues that there is at least one “point of deception” in each incidence of illicit procurement. This is “the point at which the details of the true end use or end user of the goods … becomes obfuscated.” Glenn Anderson, “Points of Deception: Exploring How Proliferators Evade Controls to Obtain Dual-use Goods,” Strategic Trade Review, Vol. 2, No. 2 (2015), pp. 4–24.
98 Sutherland, “White Collar Criminality.”
99 Friedrichs, Trusted Criminals. See also Egle Murauskaite, “The Trust Paradox in Nuclear Smuggling,” Nonproliferation Review, Vol. 22, Nos. 3–4 (2015), pp. 321–39.
100 R.V. Clarke, “Introduction,” in R.V. Clarke, ed., Situational Crime Prevention: Successful Case Studies (New York: Harrow & Heston)
101 Paul Ekblom, “Situational Crime Prevention,” in Eugene McLaughlin and John Muncie, eds., The SAGE Dictionary of Criminology (London: SAGE, 2013), pp. 411–12.
102 R.V. Clarke, “Introduction,” p. 4.
103 Ibid.
104 Ibid.
105 Michael L. Benson and Tamara D. Madensen, “Situational Crime Prevention and White-Collar Crime,” in Henry N. Pontell and Gilbert L. Geis, eds., International Handbook of White-Collar and Corporate Crime (New York, NY: Springer, 2007), pp. 609–26.
106 Friedrichs, Trusted Criminals, p. 9.
107 US Bureau of Industry and Security, “Red Flag Indicators,” undated, <www.bis.doc.gov/index.php/enforcement/oee/compliance/23-compliance-a-training/51-red-flag-indicators>.
108 Anthony Capaccio, “Defense Contractors Credited for Finding a Russian Export Scheme,” Bloomberg, October 31, 2016, <www.bloomberg.com/news/articles/2016-10-31/defense-contractors-credited-for-finding-a-russian-export-scheme>.
109 Maria Rost Rublee, Nonproliferation Norms: Why States Choose Nuclear Restraint (Athens, GA: University of Georgia Press, 2009).