Combating Biological Weapons
By Michael Crowley

UNSCOM Photo

The tragic events of 11th September, coupled with the subsequent anthrax attacks and hoaxes, have greatly increased global concern over the risk of biological warfare, particularly bio-terrorism. However, the international community’s attempts to strengthen the prohibition of biological weapons (BW) by negotiating a legally binding verification Protocol to the 1972 Biological Weapons Convention (BWC) - Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction - foundered when the United States rejected the draft text at the July 2001 Ad Hoc Group negotiating meeting. This setback was reinforced and deepened at the fifth BWC Review Conference in 2001 when the United States called for the disbandment of the Group.

The United States position, taken as a result of its concerns over national security, corporate intellectual property rights and enforceability, has left unclosed a dangerous gap in the international control regime. What might then be done to make BW proliferation and use less likely? What role can the United Nations play in combating biological weapons? In discussing initiatives, it is important to examine areas where it might be possible to engage the United States Administration, and to build upon, expand and internationalize the elements of its proposals.

Tackling the BW threat should be a key priority for the United Nations over the coming years, as the likely consequences of inaction are stark. As Secretary-General Kofi Annan told the General Assembly on 1 October 2001: “It is hard to imagine how the tragedy of 11 September could have been worse. Yet, the truth is that a single attack involving a nuclear or biological weapon could have killed millions.”

This article sets out the case for increasing the role of the UN system in BW control in four specific areas: supporting the BWC and enabling State compliance; criminalizing breaches of the Convention; disease surveillance and humanitarian assistance; and facilitating verification of compliance.

The case for reinforcing the BWC by establishing supportive institutions to promote adherence to the Convention has been raised repeatedly by its States parties, most recently at the adjourned 2001 Review Conference. The United Nations, particularly its Department for Disarmament Affairs (DDA), could well play a key role if such structures came into being. It has been envisioned that such interim supportive institutions1 would comprise a representative committee of oversight formed from and mandated by the BWC Review Conference, and supported by scientific and legal advisory panels, and a small, dedicated secretariat. These bodies would be “interim” because their initial mandate would run only to 2006, when the Sixth Review Conference might amend or renew it; and “supportive” because they would support the effective operation of the Convention on behalf of the States parties collectively. They would give the BWC a focal point and continuity of attention in the five-year intervals between its Review Conferences. Possible roles for an interim committee of oversight and a secretariat could include:

• overseeing the effective application of the Convention and, in particular, following up the Review Conference’s Final Declaration and decisions, and assisting States parties in implementing them;
• overseeing the operation of, and assisting States in complying with, the politically-binding information exchange confidence-building measures (CBMs), first introduced by the second Review Conference in 1987;
• facilitating the dissemination of information, such as Review Conference documentation, lists of States parties, CBMs, etc; and
• promoting universal adherence to the Convention and facilitating accession of States that are not yet parties to the Convention.

The circulation of CBM information could lead to the development of best practices in domestic legislation prohibiting BW production and development. Such convergence would, in turn, facilitate the development of international controls. Though all CBMs are politically-binding commitments, they have been, at best, only patchily implemented.

Very few States parties have consistently fulfilled their requirements,2 even though a simplified reporting procedure for the CBM programme has been in operation since April 1992, and each Review Conference has called for their adherence. DDA, which holds copies of all CBMs submitted by States, is well placed to act as a facilitator and resource body aiding greater State compliance with reporting.

Similarly, despite continued appeals at successive BWC Review Conferences, only 144 countries (roughly 75 per cent) are parties to the Convention. Of the non-party States, 18 have signed but have not ratified, whilst a further 30 have not yet signed. While some States, especially in the Middle East, have been resistant to joining the BWC because of regional security concerns, for many others inadequate resources or political will have been the main stumbling blocks. The path to ratification or accession could therefore be eased by a helpfully persistent oversight committee and a secretariat with requisite legal resources. These bodies could likewise facilitate and encourage those States still with official reservations to the 1925 Geneva Protocol3 prohibiting the use in war of chemical and biological weapons, such as retaining a “right” of retaliatory use of biological weapons, to withdraw them.

In the run-up to the BWC Review Conference, President George Bush called on State parties to “enact strict national criminal legislation against prohibited BW activities with strong extradition requirements”. Although such criminalization would be an important development, it would not be enough. For it is doubtful whether all States would enact appropriate penal legislation, leaving safe havens where BW users could seek sanctuary. Furthermore, there is a danger that disparities in the detail of such legislation may lead to inconsistencies between national jurisdictions. What is needed is a universal criminalization of individual involvement in biological weapons by making such activities international crimes.

A treaty to create such law has, in fact, been drafted by the Harvard Sussex Program, in consultation with an international group of legal authorities.3 This proposed treaty would make it an offence for any person-including government officials and leaders, commercial suppliers, weapons experts and terrorists-to order, direct or knowingly render substantial assistance in the development, production, acquisition or use of biological or chemical weapons. Any person, regardless of nationality, who commits any of the prohibited acts would face the risk of prosecution or extradition should that person be found in a State that supports the proposed convention. Such individuals would be regarded as hostes humani generis (enemies of all humanity). The development of international criminal law to hold individuals responsible would create a new dimension of constraint against biological weapons. The norm against using biological agents for hostile purposes would be strengthened; deterrence of potential offenders, official and unofficial, would be enhanced; and international cooperation in suppressing the prohibited activities would be facilitated.

The legal organs of the United Nations would, of course, have a crucial role to play in such treaty development. It is important therefore that relevant UN bodies examine the Harvard Sussex draft treaty and give consideration to initiating a process to develop a legal instrument to ensure that breaches of the BWC are treated as an international crime.

Preparing for biological warfare or terrorism has more in common with confronting the threat of emerging infectious disease than preparing for chemical or nuclear attacks. An appropriate defense against potential BW attack, whether covert or overt, by State or non-State actors must be based on improved health surveillance and response. The “first responders” for a biological attack would most likely be doctors, pathologists and other health care workers, and the speed of a response will depend on their recognition that certain illnesses appear out of the ordinary.

Regardless of whether the origin of a disease outbreak is intentional (terrorism or warfare), accidental or natural, a public health response will be necessary to detect and contain it. Moreover, such a capability will benefit the host population whether or not a BW attack ever occurs. This is a crucial area where there is growing consensus among the international community of the need to act in concert. The United Nations and its specialized agencies, particularly the World Health Organization (WHO), working together with the BWC States parties, have a crucial role to play in combating biological weapons in the context of disease prevention. Whilst some important initiatives have been undertaken, above all by WHO,4 the level of national and international preparedness, coordination and resourcing could be much improved, specifically in the development and coordination of global disease surveillance, awareness and preventative measures and of response to BW attack and provision of humanitarian assistance.

First, UN agencies have as yet underutilized vital coordination roles in assisting States parties to strengthen national and local programmes of surveillance for infectious diseases and in improving early notification, surveillance, control, protection and response capabilities. Such coordination might include promoting the exchange of scientists and experts to enhance the capability of States parties in supporting their surveillance programmes and increased operation, and coordination and access of existing databases on infectious disease.

Second, UN agencies can play a vital role in responding to BW attacks. WHO, for example, could coordinate rapid provision of medical assistance, while the Food and Agriculture Organization of the United Nations could provide assistance with the Office International des Epizooties [World Organization for Animal Health] if the attack was made on plants or animals, rather than human targets. Furthermore, where local resources are insufficient to cope with the humanitarian aspects of the situation, then the UN Office for the Coordination of Humanitarian Affairs could also be called in.

The last critical area where the United Nations has an absolutely central role to play is in the coordination and expression of mechanisms for ensuring compliance of the BWC. The first activity and one that has been successful in the past is international compliance diplomacy. The General Assembly, Security Council and Secretary-General have played crucial roles in encouraging State adherence to the BWC, the Geneva Protocol and the general norm of BW prohibition. Where such compliance is in doubt, the UN diplomatic corps has a vital role in establishing how such concerns should be addressed by the mutual consent of all parties. However, there will be cases where such diplomacy fails and where there will be a need for an effective investigatory mechanism to determine compliance with the BWC and the general prohibition on biological weapons. This was recently voiced in the draft Final Declaration of the 2001 Review Conference, which stated: “The Conference invites States parties to consider the development by all States parties of a compliance mechanism within the framework of the Convention to conduct investigations regarding alleged breaches of the Convention.”

Although the United States currently rejects further negotiation of a legally binding BWC verification Protocol, it called for the establishment of voluntary compliance mechanisms, as well as for international investigations of suspicious disease outbreaks and/or alleged BW incidents. Under this proposal, parties would be required to accept international inspectors upon determination by the Secretary-General that an inspection should take place. Under Article VI of the BWC, a mechanism establishing a Security Council investigation system already exists, although it has never been utilized.

Considering the widespread concern that certain States have undertaken research and development of biological weapons, we must ask ourselves why Article VI has never been invoked? Why, for example, did the United States refuse to invoke Article VI against the six nations it accused of BW research and development at the Review Conference? Part of the reason may lie in the perception that the Security Council, and by extension the office of the Secretary-General, are heavily constrained from acting by geopolitical considerations and the requirement of Council consensus.

Similar concerns were also raised in the context of the operation of the United Nations Special Commission (UNSCOM), established in 1991 after the Iraq-Kuwait war with the aim of eliminating Iraq’s weapons of mass destruction and ballistic missile delivery systems. UNSCOM succeeded despite continual and increasing Iraqi obstruction and evasion, but suffered from two critical weaknesses. First, questions were raised by Iraq and other States over its impartiality, culminating in allegations that UNSCOM members had been spying for the United States. Second, while its mandate and power to act came from the UN Security Council, over the subsequent nine years unanimity was eroded to the point where Council agreement on action could not be achieved.

Unfortunately, the United States proposal for a Secretary-General’s investigatory regime is likely to suffer from the same failings. What is needed is a truly independent compliance monitoring and verification regime, whether inside the UN system or one along the lines elaborated in the Protocol negotiations.

In some future situations, the international community may well have to deal with sustained and deliberate attempts by a State party to develop and maintain biological weapons in direct breach of its commitments under the BWC. Such a regrettable state of affairs will provide a powerful test of both the multilateral approach to BW control and the role of the UN within this system. Dealing with such challenges, it will be crucial that the international community focus its enforcement efforts through the United Nations. Despite the difficult consensus-building that such an approach would involve, it would ensure the vital moral and legal legitimacy necessary for prolonged action against another State party. As Kofi Annan put it in his Millennium Report, the UN remains “the only global institution with the legitimacy and scope that derive from universal membership”. As such, it must remain central to all efforts at international BW prohibition enforcement.

Notes:
1 See Nicholas Sims, “Nurturing the BWC: Agenda For The Fifth Review Conference and Beyond”, CBW Conventions Bulletin, no. 53, September 2001; Disarmament Diplomacy, no. 58, June 2001; “Interim supportive institutions for the Biological Weapons Convention”, presented at the 14th workshop of the Pugwash Study Group on the implementation of the Chemical and Biological Conventions, 18 November 2000.

2 A study found that by 1996, only 75 of the BWC States parties had taken part even once since 1987, and only 11 had made annual declarations as required. See Marie Isabelle Chevrier, “Doubts About Confidence: The potential limits of Confidence-Building Measures for the Biological Weapons Convention”; in Amy Smithson (ed) Biological Weapons Proliferation: Reasons for Concern, Courses of Action, Stimson Centre Report, no.24, 1998.

3 See Matthew Meselson, "Averting the exploitation of biotechnology", Harvard-Sussex Program; and “Strengthening the Biological Weapons Convention”, CBW Conventions Bulletin no. 42, December 1998. International Criminal Law and Sanctions to Reinforce the BWC, CBW Conventions Bulletin no. 54, December 2001.

4 The WHO, for example, is trying to improve the situation with such initiatives as the Global Outbreak Alert and Response Network. Established in April 2000, it links 72 existing networks around the world, many of which are equipped to diagnose unusual agents and handle dangerous pathogens.

Links:
British American Security Information Council
CBW Conventions Bulletin
Harvard Sussex Program

Michael Crowley is Senior Weapons Trade Analyst at the British American Security Information Council (BASIC). Prior to joining BASIC, he worked with Amnesty International for 12 years and has written widely on arms control, security and human rights issues.