BIOLOGICAL WEAPON

                                            By- Adv. Shyam Nath Sah

                                                         LL.B, LL.M from B.H.U

                                                                      Email- shyamnathsah@gmail.com

Introduction    

 

          Since ancient times, the use in war of poison has been considered a treacherous practice. It was condemned by international declarations and treaties, notably by the 1907 Hague Convention respecting the laws and customs of war on land . Efforts to strengthen this prohibition resulted in the conclusion, in 1925, of the Geneva Protocol which banned the use of asphyxiating, poisonous or other gases, usually referred to as bacteriological methods of warfare. It  include not only bacteria, but also other biological agents, such as viruses or rickettsiae . However, the Geneva Protocol did not prohibit the development, production and stockpiling of biological weapons.

         Shortly after World War II, the United Nations called for the elimination of all weapons “adaptable to mass destruction” . Biological and chemical weapons were included in this category of arms along with atomic and radiological weapons . Debates on their prohibition took place in the 1950s and 1960s in the context of proposals for general disarmament but, again, the debate remained inconclusive.[1]

        As a separate issue, the prohibition of chemical and biological weapons appeared on the agenda of the Eighteen-Nation Committee on Disarmament in 1968. One year later, the United Nations published an influential report on the problems of chemical and biological warfare, and the question received special attention at the UN General Assembly. The UN report concluded that certain chemical and biological weapons cannot be confined in their effects in space and time and might have grave and irreversible consequences for man and nature[2].

         United Kingdom and a few other Western countries adopted the view that biological weapons should be banned first. The Socialist and many neutral and non-aligned States were opposed to a separate treatment of these weapons, but finally accepted  it. Subsequent negotiations on a global prohibition of biological weapons led to an international agreement. On 16 December 1971, the text of the convention worked out by the Conference of the Committee on Disarmament (CCD), the successor of the Eighteen-Nation Committee on Disarmament, was commended by the UN General Assembly.[3]

          On 10 April 1972, the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction was opened for signature. It entered into force on 26 March 1975, after the deposit of the instruments of ratification by 22 signatory governments, including the governments of the Soviet Union, the United Kingdom and the United States, designated as depositaries. By 1 January 1997, the BW Convention had been joined by 140 States, including all the permanent members of the United Nations Security Council.

Chapter-I

Definitions

 

Biological warfare, also referred to as “germ warfare” or “bacteriological warfare,” is defined as the use of “living  organisms, whatever their nature, or infective material derived from them, which are intended to cause disease or death in man, animals or plants, and which depend for their effects on their ability to multiply in the person, animal or plant attacked[4].” A few examples of biological weapons is  bacteria, viruses, rickettsiae, fungi, toxins. It also includes tularemia, anthrax, Q fever, epidemic typhus, smallpox, brucellosis, VEE, botulinum toxin, dengue fever, Russian spring-summer encephalitis, Lassa fever, Marburg, and Ebola.

(1)     Biological Weapon Convention

Biological Weapon Convention doesn’t define ‘Biological Weapon’ but it may be defined as “any agent, toxin, weapon, equipment or means of delivery referred to in Article I of the Biological Weapon Convention”[5].

Article 1 of this convention says that "Each State Party to this Convention undertakes never in any circumstances to develop, produce, stockpile or otherwise acquire or retain:

(1)     Microbial or other biological agents, or toxins whatever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective or other peaceful purposes;

(2)     Weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict."

(2)     World Health Organization

Biological weapons are those that achieve their intended target effects through the infectivity of disease-causing microorganisms and other replicative entities, including viruses, infectious nucleic acids and poison. Some of these biological agents may owe their pathogen city to toxic substances that they themselves generate. Such toxins can sometimes be isolated and used as weapons. The BWC covers toxins, by which it means toxins produced by any living organism, not only by microorganisms, or by any other means, including synthesis.[6]

(3)     Encyclopaedia Britannica

Biological weapon, also called germ weapon,  any of a number of disease-producing agents—such as bacteria, viruses, rickettsiae, fungi, toxins, or other biological agents—that may be utilized as weapons against humans, animals, or plants.

The direct use of infectious agents and poisons against enemy personnel is an ancient practice in warfare. Indeed, in many conflicts diseases have been responsible for more deaths than all the employed combat arms combined, even when they have not consciously been used as weapons[7].

(4)     London Sunday Times-

Biological weapons are defined as[8]:

·                     Microorganisms that infect and grow in the target host producing a clinical disease that kills or incapacitates the targeted host. Such microbes may be natural, wild-type strains or may be the result of genetically engineered organisms.

·                     Biologically Derived Bioactive Substances (BDBS) products of metabolism (usually, but not always, of microbial origin) that kill or incapacitate the targeted host. These include biological toxins, as well as substances that interfere with normal behavior, such as hormones, neuropeptides and cytokines.

·                     Artificially Designed Biological-Mimicking Substances: With our knowledge of the mechanisms of biological processes it is now possible to design and manufacture substances that mimic the action of biologics. For example, we already make nerve gases and their close relatives, pesticides, that act by binding specifically to receptors of targeted organisms, so it takes little imagination to predict that, as we learn more about the specifics of biological processes, we will be able to create "designer" substances that can be specifically targeted to a particular cell-type in an enemy (e.g. people with blond hair and blue eyes).

(5)       In India

Weapons of Mass Destruction Act, 2005 defines "Biological weapons". According to section 4 of this Act "Biological weapons"   are--

(i)      Microbial or other biological agents, or toxins whatever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective or other peaceful purposes; and

(ii)      Weapons, equipment or delivery systems specially designed to use such agents or toxins for hostile purposes or in armed conflict;

(6)     In America

Sec 178 of Biological weapons Anti Terrorism Act, 1989 Act defines ‘biological agent’ and ‘toxin’. According to this Act-

(1)     The term ‘biological agent’ means any micro-organism, virus, or infectious substance, capable of causing--

·                    Death, disease, or other biological malfunction in a human, an animal, a plant, or another living organism;

·                    Deterioration of food, water, equipment, supplies, or material of any kind;

(2)     The term `toxin' means, whatever its origin or method of production--

·                    Any poisonous substance produced by a living organism; or

·                    Any poisonous isomer, homolog, or derivative of such a substance.

Chapter-II

History of Biological Weapon

          There is a long history of nations and peoples using biological agents as weapons. Many examples of use have been cited from as long ago as 190 BC, where Hannibal used venomous snakes to disrupt the enemy ships of Pergamus in Eurymedon.10 It is difficult to determine if early examples of deliberate spread of biological agents, however oft cited, were effective in causing disease, or if the acts were confounded by other naturally occurring factors. For example, most references on the historical uses of biological weapons cite the siege of Kaffa in 1346, where De Mussis, leader of the attacking army, thought to use his plague stricken force to his advantage by catapulting corpses of plague victims into the city. An outbreak of plague broke out in the Kaffa, now known as Feodosia, Ukraine. The Genoese forces retreated back to Genoa, Venice and other Mediterranean ports, sparking the second wave of the plague epidemic in Europe.

          While the outbreak of plague in Kaffa is usually attributed to the efforts of the attacking Tartars, other epidemiologic factors may have been responsible, such as the spread of flea-infested rats.[9]

           Another example of biological warfare often referred to in the historical record is the use of smallpox during the French and Indian War in 1763. Through the combined ingenuity of British Officers Sir Jeffrey Amherst and Colonel Henry Bouquet, smallpox infested blankets were given to the Indians at Fort Pitt, setting off an epidemic of smallpox that rendered the Indian tribes incapable of fighting off the British settlers.[10] In this instance, it is not clear if the blankets themselves caused the outbreak of smallpox or whether it was due to previous exposure to the Europeans. Regardless, this method of biological warfare was used again during the American Civil War, when Dr. Luke Blackburn of Kentucky sold smallpox and yellow fever infected clothing to Union troops in an effort to support the efforts of the Confederacy.

         Use of biological agents continued over time, and the evidence of their effectiveness strengthened in the post Koch’s postulates age. In World War I, the Germans utilized biological warfare by attacking allied horses and cattle, covertly inoculating them with anthrax (Bacillus anthracis) and glanders (Burkholderia (Pseudomonas) mallei) as they were shipped out of ports in the United States to allied forces in Europe. There were also reports that the Germans used plague against the Russians in 1915, and attempted to use cholera against Italy. Between 1933 and the late 1940’s, Japan researched biological warfare at a compound known as Unit 731, where over 10,000 prisoners of war used for research purposes died of anthrax, meningitis, cholera and plague. Japan followed its experiments with prisoners of war by using biological agents against the people of China, causing outbreaks of typhus, cholera and plague, resulting in the deaths of tens of thousands of Chinese civilians. One method used by the Japanese in Manchuria was dropping rice and plague infected fleas out of airplanes[11]. The rice attracted rats, which then became infected with the fleas, thus creating efficient epidemiologic conditions by which the disease spread to humans over a large geographic area. When the League of Nations sent a commission to investigate Japan’s actions in Manchuria, Japanese military officials attempted, unsuccessfully, to poison their food with cholera.[12]

         Following World War II and revelations about the Japanese biowarfare program, the United States initiated its own biological weapons program, focusing initially on the weaponization of anti-plant pathogens for use primarily against cereal crops. The first agent weaponized by the United States for use against humans was Brucellosis (Brucellasuis), an agent that also infects animals. Other agents weaponized and stockpiled by the US military were anthrax, botulism, tularemia, Q-fever, staphylococcus enterotocin B, Venezuelan Equine Encephalitis, rice blast, rye stem rust, and wheat stem rust. By 1969, however, the United States had disbanded its offensive biological warfare program and in 1972 signed the Biological Weapons Convention of 1972, banning the development, production and stockpiling of biological agents for offensive use. The only successful recent biological attack in the United States, before the events of September-October 2001, was in 1984. Members of the Rajneeshee cult in The Dalles, Oregon used Salmonella typhimurium to poison salad bars at ten local restaurants. Their purpose was to influence a local election by reducing the number of local citizens who would go to the polls. Seven hundred and fifty-one cases of Salmonella were documented, and authorities only found out about the Rajneeshee role in the outbreak during an unrelated investigation a year later.  This example underscores the difficulty of detecting biological attacks and the inability of surveillance methods to determine the cause of the outbreak.[13]

The Hague Convention, 1907 

The laws of war were first comprehensively codified in the 1907 Hague Convention, which constitutes an authoritative source of customary international law. Article 23 of the 1907 Hague Convention prohibits the use of poisonous weapons, as well as the deployment of weapons “calculated to cause unnecessary suffering.” Unfortunately, these prohibitions did not deter the use of chemical weapons by both sides in World War I. It is estimated that the use of chlorine and mustard gas during that war caused over a million casualties, including 90,000 deaths[14].

The Geneva Protocol, 1925

In 1925, the Geneva Protocol (the Protocol) was established to ban the “use in war of asphyxiating, poisonous or other gasses, and of all analogous liquids, materials or devices.” The Geneva Protocol was a direct response to the failure of the 1907 Hague Convention to prevent the use of chemical weapons during World War I. Over 145 States have ratified the 1925 Geneva Protocol. The treaty was thought to have prevented the use of chemical weapons by all of the European belligerents in World War II[15].

However, in subsequent years it became increasingly evident that, because of the many gaping holes in coverage, the Protocol was just as ineffective in preventing the production and use of biological weapons as its predecessor. First, many States reserved the right to use biological weapons against non-parties and to retaliate in kind against parties who used  biological weapons first. In addition, the Protocol does not ban the design, testing, production, or stockpiling of biological or chemical weapons or precursors, thereby providing an incentive for countries to continue producing and stockpiling these weapons, and ensuring the short order availability of such weapons for retaliatory purposes. Moreover, the prohibition does not apply to peacetime use of chemical or biological weapons. Nor does it apply to internal use by a government against its own citizens such as the Iraqi government's poison gas attacks on the Iraqi Kurds, which resulted in the deaths of several hundred thousand people. Further, the Protocol contains no verification regime to investigate suspected violations and ensure compliance with the prohibition. Finally, the Protocol has not been enforced. The international community has not imposed sanctions for documented violations of this Protocol, such as the use by Iraq of chemical weapons against Iran. Nor has the international community imposed sanctions on countries which export biological weapons precursors. In light of these weaknesses, it became apparent that the Protocol was not an adequate solution to the problems posed by the frequent use of biological weapons and the growing proliferation and stockpiling of biological weapons[16].

The Biological Weapons Convention

Some of the weaknesses of the 1925 Geneva Protocol were eliminated by the 1972 Biological Weapons Convention, which entered into force in 1975. The Biological Weapons Convention was the first treaty to totally outlaw an entire category of weapons[17].

Under Article I of the 1972 Convention, each State party agrees never to produce, stockpile, or otherwise acquire:

1.       Microbial or other biological agents or toxins whatever their origin or method of production of types and in quantities that have no justification for prophylactic, protective or other peaceful purposes; and

2.       Weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict.

Article II requires each State Party to destroy existing stockpiles of biological weapons within nine months of the Convention's entry into force.

The 1972 Biological Weapons Convention, which has been widely ratified, reflects a comprehensive repudiation of the development, production, and stockpiling of biological weapon. Despite its symbolic importance as a norm creating treaty, the absence of verification and enforcement provisions has rendered it “merely a paper agreement that could easily be circumvented.”  This became apparent when, in 1979, an accident at a covert Soviet biological weapons plant was responsible for the outbreak of an epidemic of anthrax in Sverdilovsk, USSR, which may have killed up to a thousand persons[18].

Like the Protocol, the Biological Weapons Convention is riddled with gaps and loopholes. First, biological weapons research is not prohibited. Second, the Article I limitation to biological agents or toxins “that have no justification for prophylactic, protective or other peaceful purposes” constitutes an enormous loophole since “protective” and “peaceful” applications cannot reliably be distinguished from hostile military applications. Similarly, the obligation to destroy stockpiles for any biological agent or toxins contained in Article II does not apply to biological agents that are “diverted to peaceful purposes,” thereby providing states an alarming degree of discretion[19].

The Review Conference Of BWC

Under Article XII of the BWC, a conference was mandated to occur within five years of entry into force of the Convention to review its operation, relevant scientific and technological developments, as well as progress towards the negotiation of a convention to prohibit the development, production, stockpiling and use of chemical weapons.[20]

This First Review Conference took place in Geneva from 3 to 21 March 1980. It decided that a Second Review Conference would take place about five years later, as well as concluding that texts of national implementation measures should be provided to the United Nations.

The Second Review Conference took place in Geneva from 8 to 26 September 1986. The Final Document of the conference asserted that the provisions of the BWC cover all relevant current and future scientific and technological developments as well as applying to all international, national and non-State actors, thereby bringing the issue of bioterrorism within the scope of the Convention. It also permitted the World Health Organization to coordinate emergency response measures in cases of the alleged use of biological and toxin weapons. The Second Review Conference laid down procedure for resolving doubts about compliance, known as the Formal Consultative Process, and established an annual exchange of information, known as Confidence- Building Measures (CBMs). The CBMs were intended to reduce the occurrence of ambiguities, doubts and suspicions, and improve international cooperation in the field of peaceful biological activities. An Ad Hoc Meeting of Scientific and Technical Experts was held (31st March to 15th April 1987) to establish the precise format of the CBMs[21].

The Third Review Conference, held in Geneva from 9 to 27 September 1991, asserted that the BWC covers agents relating to humans, animals and plants; requested States Parties to re-examine their national implementation measures; revised the format for Formal Consultative Meetings; revised the CBMs; indirectly encouraged the United Nations Secretary-General to conduct investigations into allegations of the use of biological and toxin weapons; expanded upon the coordinating role of intergovernmental organizations in the response to such occurrences; asserted that information on the implementation of Article X on peaceful uses of the biological sciences should also be provided to the United Nations; and established an Ad Hoc Group of Governmental Experts to identify and examine potential verification measures from a scientific and technical standpoint (VEREX).

The Fourth Review Conference, held in Geneva from 25 November to 6 December 1996, established that the BWC effectively covers the use of biological and toxin weapons, as well as asserting that all destruction and conversion activities of former weapons and associated facilities should take place prior to accession to the Convention. It recommended a series of specific measures to enhance the implementation of Article X.

The Fifth Review Conference opened in Geneva on 19 November 2001, but because of divergent positions on the Ad Hoc Group (see next section), it was suspended on 7 December 2001. A resumed session was held in Geneva from 11 to 22 November 2002, which decided that a series of annual Meetings of Experts and Meetings of States Parties would be held to discuss, and promote common understanding and effective action on a range of topics to strengthen the Convention.

The Sixth Review Conference took place in Geneva from 20 November to 8 December 2006. It adopted a final declaration covering the full scope of the Convention as well as a series of decisions and recommendations to strengthen the implementation of the Convention. The Sixth Review Conference importantly reaffirmed that not only does the BWC apply to all relevant scientific and technological developments, now and in those that will occur in the future, but that it also effectively prohibits the use of biological weapons by anyone, anywhere, at anytime for any purpose. This complete prohibition explains why the BWC underpins every effort made by the international community to confront the threat posed by these weapons. The 2006 conference also saw the creation of the Implementation Support Unit (ISU), which some commentators have suggested was its greatest success. It also saw the adoption of a plan of action to turn earlier commitment towards expanding the membership of the treaty into practical action. The output of this meeting has, therefore, significantly expanded the platform built upon the foundations of the Convention, shorn up the principles on which it is built as well as extending and strengthening the impact of the BWC, including through: Confidence-Building measures; national implementation; universalization; institutional support; and a new intersessional process.

The Seventh Review Conference of the Biological Weapons Convention was held at the United Nations Office in Geneva from 5 to 22 December 2011[22]. Speakers said that the Biological Weapons Convention was an important pillar of the global security architecture which needed to be preserved and strengthened. The Seventh Review Conference, by bringing together representatives of Governments, independent experts, academia, as well as non-governmental organizations presented an exceptional opportunity to further streamline activities beyond the community on disarmament. There should be an intensification of efforts towards the universalization of the Convention as only nine additional States had joined it in the past five years. Some States referred to the rapid advances in biological science and technology and the dual-use nature of biotechnology which made it increasingly difficult to draw a clear distinction between the peaceful and prohibited uses of biological materials[23]. The Convention should keep abreast of these developments to effectively counter new emerging threats and some States noted that the five-yearly review seemed to be insufficient to meet this challenge.

Chapter III

 

Purpose Of The Biological Weapon Convention

The main purpose of biological weapon convention as undertaken by the parties to convention "never in any circumstances to develop, produce, stockpile or otherwise acquire or retain:

1.                 Microbial or other biological agents, or toxins whatever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective or other peaceful purposes;

2.                 Weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict[24]."

The States Parties to this Convention, Determine to act with a view to achieving effective progress toward general and complete disarmament, including the prohibition and elimination of all types of weapons of mass destruction, and convinced that the prohibition of the development, production and stockpiling of  bacteriological (biological) weapons and their elimination, through effective measures, will facilitate the achievement of general and complete disarmament under strict and effective control[25],

Recognizing the important significance of the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, signed at Geneva on June 17, 1925, and conscious also of the contribution which the said Protocol has already made and continues to make, to mitigating the horrors of war, Reaffirming their adherence to the principles and objectives of that Protocol and calling upon all States to comply strictly with them, Recalling that the General Assembly of the United Nations has repeatedly condemned all actions contrary to the principles and objectives of the Geneva Protocol of June 17, 1925[26],

Desiring to contribute to the strengthening of confidence between peoples and the general improvement of the international atmosphere, Desiring also to contribute to the realization of the purposes and principles of the Charter of the United Nations, Convinced of the importance and urgency of eliminating from the arsenals of States, through effective measures, such dangerous weapons of mass destruction as those using chemical or bacteriological (biological) agents, Recognizing that an agreement on the prohibition of bacteriological (biological) and toxin weapons represents a first possible step towards the achievement of agreement on effective measures also for the prohibition of the development, production and stockpiling of chemical weapons, and determined to continue negotiations to that end, Determined, for the sake of all mankind, to exclude completely the possibility of bacteriological (biological) agents and toxins being used as weapons, Convinced that such use would be repugnant to the conscience of mankind and that no effort should be spared to minimize this risk[27].

Desirable Characteristics For Efforts To Ban Biological Weapons

This section details eight ‘trusims’, which can be heard at pretty much any meeting addressing biological weapons issues. They do not provide an exhaustive account of these weapons but do highlight the direction of current thinking[28].

(1)     There Can Never Be Zero Risk Of Use

As almost all of modern biology has some potential to be misused for hostile ends, it is often argued that whilst we pursue biology as a science, there will always be some risk that it will be used as a weapon. As a result, short of stopping our scientific endeavour in its entirety, there is nothing that we can do to entirely eliminate risk. As a result, whatever we do, there will be no perfect regime (one that gets rid of the problem altogether). Rather we have had to move to a risk management approach where we use a comprehensive set of tools and approaches to reduce the risk to an acceptable level.

(2)     Deliberate Disease Is Only Part of a Spectrum of Biological Risks

It has been pointed out that there are various causes of biological risks and threats, ranging from entirely natural disease, through acts with unintended consequences, accidents, negligence and vandalism, up to the deliberate instigation of disease. There are certain strategies and tools that are useful across the full spectrum of risks (effective disease surveillance, for example) but each risk also requires a tailored response. For example, we cannot rely on health or safety mechanisms to provide security. We will need to think about how they need to be reinforced through a dedicated response to mitigate the threat of deliberate disease[29].

(3)     Disease Knows No Borders

The spread of disease, it has been suggested, is not party to international treaties,nor does it respect borders between countries. Given the interconnectedness of the world in which we live and the speed with which natural disease outbreaks spread through the international transport networks, an outbreak of infectious disease can quickly spread to any country in the world. No *28 State, no matter how resourceful, can fully protect itself from all possible biological risks and threats. As a result, efforts to deal with disease will have to be international and they will have to cover the entire globe to ensure that they apply to any disease event, irrespective of location[30].

(4)     States Are (and Will Likely Remain) the Key International Actors

It has been noted that although biology is increasingly pursued outside of the direct purview of States, States remain the primary actor at the international level. Non-State actors can play an important practical role in international relations (such as the activities of Human Rights Watch) and in some cases have helped to drive the creation of international legal frameworks to ban weapons (such as in the case of both the Ottawa Convention to ban anti-personnel landmines and the Oslo Convention to ban cluster munitions). However, the framework in which such regimes function was created by, and for the benefit of, States. As a result, to maximize practical impact, efforts to tackle biological weapons will have to find a way to leverage the power of States.

(5)     There Are No Technological Solutions for Addressing Biological Weapons

The last time that States Parties to the BWC collectively examined the technical aspects of addressing biological weapons acquisition and use was in 1993. The report of that review agreed: ‘reliance could not be placed on any single measure to differentiate conclusively between prohibited and permitted activity and to resolve ambiguities about compliance some measures in combination could provide enhanced capabilities’. It also noted that ‘some limitations inherent in individual measures could not be removed and in some cases combinations of measures may result in enhanced limitations.’ Subsequent national reviews have also not endorsed a technological solution and it was this that ultimately ended efforts to create a traditional model arms control regime to deal with biological weapons. As a result, in order to be effective, contemporary efforts will likely need to pursue ethical, moral and social solutions by adopting a human-centric response.

(6)     The Nature of Biology Is Evolving[31]

Fifteen years ago it was difficult to find a way to prevent the malign of biology. Intervening advances will have only complicated efforts to ensure biology is used solely for beneficial purposes. Advances in the life sciences are coming at an increased rate--possibly too fast for any State, organization or individual to cover alone. This will necessitate a collaborative response that fully taps global capacity, if we are to try to address a challenge of this magnitude. Equally, modern life science is spreading to new areas of the world (not traditionally thought of as technologically developed). The emerging powers in biotechnology include a significant number of developing countries. This will require responses to deal with new sets of States not traditionally engaged in security regimes and developing a solution with a truly global reach. Finally, modern biology is spreading to new types of actors, increasingly away from direct governmental oversight. This will require efforts to find ways to engage with, and influence the activities of, stakeholder communities.[32]

(7)     Dealing with Biological Weapons Is Part of ‘Health Security’[33]

There has been widespread recognition that issues of health and security significantly overlap. This includes both the world's premier security body, the UN Security Council, passing resolutions on disease issues as they come to affect international peace and security and the world's premier health body, the World Health Assembly, passing resolutions recognizing that ‘any upsurge in cases of infectious disease in a given country is potentially of concern for the international community’ in a resolution on Global Health Security. Given this confluence of interest, there is also recognition that to deal with such complex risks, it will be necessary to draw upon the resources of a broader range of actors. To be effective, contemporary efforts will need a multi-sectoral response across many governmental departments, including those from foreign affairs, interior ministries, health, agriculture, defence, education, as well as trade and industry[34].

 

Desirable characteristics for a regime to address the threat posed by biological weapons-
1.	A dedicated response
2.	An international response
3.	Global coverage
4.	A way to leverage the power of States
5.	A human-centric response
6.	A way to tap global capacity
7.	A way to engage with new States
8.	Direct engagement with stakeholders
9.	A multi-sectoral response
10.	Universal access

(8)     Equality and Equity Will Be Critical

If efforts to ensure that the prohibition of these weapons are to be absolute, it has been argued, it will be necessary to expand the membership of the overarching regime to include every country in the world. Furthermore, it will be necessary to ensure that all countries have access to mechanisms to provide core preventive and mitigation measures, so that all individuals, irrespective of location, are shielded from the biological weapons threat. This will require universal access.

Chapter IV

Means of Enforcement

The BWC is silent on the issue of penalties or sanctions for violations of the Convention. States Parties are free to set their own sanctions in the context of the enactment of domestic penal legislation. States Parties may choose to consider any penal sanctions that may already be in place for violations of the Chemical Weapons Convention or the Nuclear Non-Proliferation Treaty.29 States Parties may also look to existing counter-terrorism legislation for guidance on the severity of penalties. Ultimately, the key issue for States Parties will be to set penalties commensurate with those already existing for crimes of comparable severity. Most States Parties will obviously provide heavy prison sentences for individuals and heavy fines (and perhaps more serious consequences including withdrawal of licence to trade, etc.) for corporations found to have committed offences under the legislation.[35]

The 1972 Biological Weapons Convention (BWC) prohibits the development, production, stockpiling, acquisition, retention or transfer by any of its States Parties of biological agents or toxins ‘of types and in quantities that have no justification for prophylactic, protective, and other peaceful purposes', as well as weapons and means of delivery. The Convention also explicitly requires each State Party to take any necessary legislative and administrative measures to ensure that these prohibitions are enforced. Unless States Parties have appropriate criminal legislation detailing offences and establishing penalties for prohibited activities, any violations of the BWC will go unpunished and incentives for compliance will be minimal.

Despite forty ears since entry into force of the Biological Weapons Convention (BWC) the majority of States Parties still have not implemented effective national measures to ensure compliance with Convention obligations. The combined lack of a multilateral organization with responsibility to monitor Convention compliance and the growing threat of bio-terrorism highlight the imperative for more effective and widespread national implementation measures.  

The BWC Text includes an explicit obligation on States Parties to enact domestic legislation to ensure compliance with the prohibitions contained in article I of the Convention.

Article II of this convention says that Each State Party to this Convention undertakes to destroy, or to divert to peaceful purposes, as soon as possible but not later than nine months after the entry into force of the Convention, all agents, toxins, weapons, equipment and means of delivery specified in article I of the Convention, which are in its possession or under its jurisdiction or control. In implementing the provisions of this article all necessary safety precautions shall be observed to protect populations and the environment.

Article X (2) of this convention says that This Convention shall be implemented in a manner designed to avoid hampering the economic or technological development of States Parties to the Convention or international cooperation in the field of peaceful bacteriological (biological) activities, including the international exchange of bacteriological (biological) agents and toxins and equipment for the processing, use or production of bacteriological (biological) agents and toxins for peaceful purposes in accordance with the provisions.[36]

A.      Security Council Enforcement

The biological weapons convention doesn’t provide any imposition of mandatory sanctions against violators. The parties to these treaties can individually or collectively impose sanctions, but embargoes are ineffective unless they are universally enforced. Thus, the U.N. Security Council may increasingly be called upon to respond to violations of the biological weapons conventions[37].

The United Nations Charter charges the Security Council with the responsibility for determining the existence of any threat to, or breach of, the peace. Articles 41 and 42 of the Charter authorize the Security Council to restore international peace and security, by force if necessary. The Security Council may call upon U.N. members to impose sanctions and to use force to ensure compliance, e.g., to interdict vessels violating an embargo. The Security Council can also freeze the assets of responsible leaders and ban their travel. Furthermore, the Security Council can call upon or authorize states to use military force in response to a violation of the international prohibition on biological and chemical weapons. The Security Council can even authorize the capture of persons responsible for serious violations of international law[38].

In the aftermath of Iraq's invasion of Kuwait, the Security Council adopted a series of resolutions to compel Iraq to destroy its arsenal of biological weapons. After Iraq invaded Kuwait, the Security Council imposed sweeping sanctions and authorized the use of force against Iraq.  At the conclusion of the Persian Gulf conflict, the Security Council adopted Resolution 687 (1991), which specified the conditions which Iraq must satisfy before sanctions would be lifted. To avoid the possibility of a future Iraqi threat using biological weapons,  Resolution 687 required Iraq to “unconditionally accept the destruction, removal, or rendering harmless, under international supervision, of  biological weapons and all stocks of agents and all related subsystems and components and all research, development, support, and manufacturing facilities.” The preamble of Resolution 687 invokes inter alia the 1925 Geneva Protocol and the 1972 Biological Weapons Convention as the justification for imposing this requirement[39].

Resolution 687 required Iraq to divulge the locations, amounts, and types of its chemical and biological weapons to the Secretary-General of the United Nations. The destruction of these materials was to be performed under the supervision of the United Nations Special Commission (UNSCOM), which was charged with the responsibility for inspection and investigation of all known or suspected weapon sites. After a series of violations of Resolution 687, culminating in Iraq's refusal to allow the inspection teams access to sites designated by UNSCOM,  the United States and Great Britain threatened to use military force to compel Iraqi compliance. The United States and Great Britain asserted that such force was permitted by Resolution 678, which authorized member states to use all necessary means to uphold and implement “all relevant resolutions” subsequent to Resolution 660. Air strikes were temporarily averted when, on February 23, 1998, Iraq's Deputy Prime Minister Tariq Aziz and United Nations Secretary-General Kofi Annon signed a Memorandum of Understanding in which Iraq agreed to accord “immediate, unconditional and unrestricted access” to UNSCOM.

Unfortunately, the February 23 Memorandum of Understanding turned out to be a short-lived solution. Notwithstanding President Clinton's warning “that if Saddam failed to cooperate fully (with UNSCOM), we would be prepared to act without delay, diplomacy or warning,” on Dec 16/1998, UNSCOM head Richard Butler reported to the Security Council that Iraq was once again refusing to turn over key documents and blocking inspections at suspected chemical and biological weapons sites. Within hours of receiving Butler's report, the United States and the United Kingdom launched a massive four-day air campaign against “a wide range of Iraqi weapons facilities and intelligence installations.”From 1991-1998, the UNSCOM inspection regime was the most intrusive and comprehensive ever imposed upon a nation. Notwithstanding Saddam Hussein's intermittent intransigence to permit U.N. inspections, the Security Council's approach to Iraqi chemical and biological weapons convention violations provides a blue print for the,future.[40]

B.      Unilateral Military Action

(i)      Anticipatory Self-Defense

Prior to the advent of the United Nations Charter, there was a customary right of reprisal, permitting nations to use military force to enforce international obligations in certain limited circumstances. The specific parameters governing lawful reprisals were set forth in the Naulilaa Incident Arbitration decision:

(1)     the offending state must have committed an act contrary to international law;

(2)     the injured state must have made a demand on the offending state and that demand have gone unsatisfied; and

 (3)    the force used in the reprisal must be proportionate to the offending act.

     If it were still good law, the doctrine of armed reprisal could be used to justify an attack on a biological weapons facility operating in violation of the biological weapons conventions. The practice of the United Nations and the opinions of the World Court, however, indicate that the right of armed reprisal is generally contrary to the U.N. Charter. Numerous resolutions condemning armed reprisals as inconsistent with the Charter have been adopted over the years. Most notably, the 1970 Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, provides that “states have a duty to refrain from acts of reprisal involving the use of force.”

Corfu Channel Case, UK. v. Alb.[41]

In this case the International Court of Justice implicitly rejected the right of reprisal. While the U.N. Charter generally prohibits armed reprisals, such measures are permissible if they qualify as an exercise of self-defense under Article 51 of the Charter.

Self-defense differs from reprisal, which is punitive in character, in that the purpose of self-defense is to mitigate or prevent harm. But the two concepts overlap in the case of anticipatory self-defense. Hugo Grotius, often regarded as the father of international law, first recognized a State's right to use force to forestall an anticipated attack in 1625. The contours of the right of anticipatory self-defense were fleshed out in an exchange of diplomatic notes between the governments of the United States and Great Britain during the Caroline incident of 1837[42]. The two countries agreed that international law permitted a military response to a threat, provided that the danger posed was, in the words of U.S. Secretary of State Daniel Webster, “instant, overwhelming, leaving no choice of means and no moment for deliberation.” The Webster formulation of self-defense is often cited as authoritative customary law. Following the Caroline incident, the imminent threat of armed attack has generally been found to justify defensive military action, provided that the threatened nation has first exhausted all peaceful means of resolution and that the action ultimately taken was proportionate to the threat[43].

The Sudanese bombing incident focused attention on the necessity requirement of the doctrine of self-defense. Because a preemptory attack on a biological weapons production or storage facility can pose a serious threat to the surrounding civilian population, the issue of proportionality may also become a source of controversy. A direct hit on a conventional ammunition depot will create a massive explosion; any resulting collateral damage will be limited to the immediate vicinity. In contrast, an attack on a chemical or biological weapons facility could result in the release of a deadly cloud of gas. The extent of the contamination of the surrounding area would depend on prevailing environmental conditions and the physical characteristics of the chemical or biological agent. A World War II allied attack on an Italian ship laden with 100 tons of mustard gas, which resulted in the release of a poisonous cloud which drifted over the port town of Bari, killing more than 1,000 civilians, demonstrated the potential for collateral damage. During the Persian Gulf conflict, the U.S. Department of Defense estimated that up to six million Iraqis could have been killed from the dispersion of anthrax and botulism viruses caused by a single attack on a biological weapons facility. Thus, all but the most carefully executed attacks on chemical or biological facilities will likely fail the proportionality requirement of self-defense[44].

(ii)     Assassination

          Consider a situation in which a particular state determines that another state plans to launch a  biological surprise attack upon its population centers. Intelligence assessments reveal that the assassination of selected key figures would prevent this attack altogether. Intelligence further reveals that conventional forms of preemption would generate far greater harm, especially if the attack resulted in releasing the targeted  biological agents. Under this scenario, would a preemptive assassination violate international law?

Just as international law is not a suicide pact, neither is it a license to kill. Assassination has traditionally been viewed as unlawful in both war and peace. Where a condition of war exists between states, international assassination constitutes a war crime. Article 23(B) of the Hague Convention IV of 1907, provides that “it is especially forbidden to kill or wound treacherously, individuals belonging to the hostile nation or army.” The United States Army's field manual on the law of land warfare has incorporated this prohibition in the following terms: “This article  prohibits assassination, proscription or outlawry of an enemy, or putting a price upon an enemy's head, as well as offering a reward for an enemy ‘dead or alive.”

Yet the 1907 Hague Convention's prohibition on assassination is not as broad as it might appear at first blush. Focusing on the “treacherous” requirement of the Hague Convention, a recent military legal analysis of war time assassination concluded that none of the following acts contravened the prohibition:

(1)     the November 18, 1941 raid by Scottish commandos at Bedda Littoria, Libya whose goal was to kill German Field Marshal Erwin Rommel;

(2)     the April 18, 1943 downing of a Japanese aircraft known to be carrying Admiral Osoruku Yamamoto by a U.S. Air Force jet fighter; and (3) the October 30, 1951 air strike by the U.S. Navy that killed 500 senior Chinese and North Korean military officers and security forces at a military planning conference at Kapsan, North Korea.

Where agents of one State assassinate the official of another state during peacetime, the action may constitute an internationally prohibited act of terrorism. Article 2(a) of the Convention on Internationally Protected Persons, to which the United States and most other countries are parties, criminalizes “the intentional commission  of  murder, kidnapping or other attack upon the person or liberty of an internationally protected person,” which are defined to include heads of state and other high level officials. It is important to note, however, that the Internationally Protected Persons Convention accords a head of state or state official protected status only when the official is outside his/her own country.

Yet, in the aftermath of the Persian Gulf conflict, an increasing number of scholars have suggested that assassination has become a legitimate preemptive strategy in light of the growing destructiveness of current weapons. By analogy with the domestic criminal law concept of “necessity,” these commentators argue that assassination can be justified under a balance of harms analysis, provided that the following conditions are satisfied.

First, a state must make a good faith effort to circumscribe potential targets to include only those authoritative persons in the prospective attacking state. Second, the assassination must comply with the settled rules of warfare as they concern discrimination, proportionality, and military necessity. Third, state-gathered intelligence must evidence, beyond a reasonable doubt, preparations for unconventional or other forms of highly destructive warfare projected against the acting state. Finally, the state must have decided after careful deliberation that an assassination would in fact prevent the intended aggression, and that it would cause substantially less harm to civilian populations than alternative forms of self-help.

While anticipatory self-defense can be subject to abuse, the risk of unleashing the assassination genie from the bottle is even greater. The prohibition on assassination provides protection to the country's own leaders who would otherwise be vulnerable to assassination plots by other states. A reversal of this customary restraint “could unleash a chain reaction of transnational assassinations and a substantial breakdown of diplomatic relations.” In addition to the risk of retaliation, targeting specific individuals may unintentionally strengthen enemy morale and resolve. Finally, the targeted individuals are likely to be replaced by others who will continue their threatening policies or by even less acceptable alternatives. According to Professor Michael Reisman of Yale Law School, “while tyranicide might present a compelling justification for assassination, assassination in any form presents a cascading threat to world order.” For this reason, large numbers of other States are likely to oppose the use of assassination as a means of enforcing international law, even if it can be legally justified as a legitimate act of self-defense.

It is noteworthy, however, that there was almost no international opposition to the August 20, 1998, U.S. cruise missile attack against terrorist bases in Khost, Afghanistan in an attempt to eliminate Osama bin Laden and his lieutenants.  International outrage has focussed entirely on the attack on the Al-Shifa plant in Sudan, which was launched on the same day.

C.      Criminalization

The prohibitions embodied in the 1908 Hague Convention, the 1925 Geneva Protocol, and the Biological Weapons Convention are directed to the actions of states, not individuals. Although the Biological Weapons Conventions contain provisions obliging each State party to prohibit persons under their jurisdiction from undertaking activities that are forbidden by the treaties, these provisions fail to deal with the situation in which an offender is present in a state that has not established or otherwise lacks jurisdiction to prosecute, or is complicit with the offender. An approach with great potential, but which has not yet been pursued is to apply international criminal law to prosecute and punish offending leaders before an international tribunal or domestic courts.

Chapter V

 

Critical Appraisal Of Biological Weapon Convention

On 10 April 1972, the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction was opened for signature. It entered into force on 26 March 1975.

The BWC prohibits the development, production, stockpiling or acquisition by other means, or retention of microbial or other biological agents or toxins, as well as of weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict. [45]The Convention has not defined the prohibited items nor the targets to which the prohibitions relate.[46]

Since the signing of the Convention, there have been no disputes among the parties regarding the definition of biological agents or toxins, but the lack of definition of “weapons, equipment or means of delivery” led to a controversy. In ratifying the BW Convention, Switzerland reserved the right to decide for itself which items fall within the definition of weapons, equipment or means of delivery designed to use biological agents or toxins. The United States entered an objection to this reservation, claiming that it would not be appropriate for States to reserve unilaterally the right to take  such decisions. In its opinion, the prohibited items are those the design of which indicates that they could have no other use than that specified in the Convention, or that they were intended to be capable of the use specified . There are, however, few weapons, equipment or means of delivery which would meet such criteria.[47]

Under the BW Convention, the prohibition to develop, produce, stockpile or otherwise acquire or retain biological agents and toxins is not absolute. It applies only to types and to quantities that have no justification for prophylactic, protective or other peaceful purposes. Retention, production or acquisition by other means of certain quantities of biological agents and toxins may thus continue, and there may be testing in laboratories and even in the field. According to the clarification given in the course of the negotiations, the term “prophylactic” encompasses medical activities, such as diagnosis, therapy and immunization, whereas the term “protective” covers the development of protective masks and clothing, air and water filtration systems, detection and warning devices, and decontamination equipment, and must not be interpreted as permitting possession of biological agents and toxins for defence, retaliation or deterrence . The term “other peaceful purposes” has remained unclear. One can assume that it includes scientific experimentation.

There are no provisions in the BW Convention restricting biological research activities. One reason for this omission may be that research aimed at developing agents for civilian purposes is difficult to distinguish from research serving military purposes, whether defensive or offensive. Moreover, in the biological field it is difficult to draw a dividing line between research and development; a country can develop warfare agents in research facilities. Once developed, these agents can be rapidly produced in significant quantities. This circumstance and the express authorization to engage in production (for peaceful purposes) of biological agents and toxins that may be used in warfare create a risk that the provisions of the Convention will be circumvented.[48]

Parties to the BW Convention have undertaken to cooperate in the further development and application of scientific discoveries in the field of biology for the prevention of diseases or for other peaceful purposes[49]. However, since the Convention is essentially a disarmament treaty, it can hardly serve as an effective instrument for such cooperation. The participants in the latest BW Convention Review Conference acknowledged the existence of an increasing gap between the developed and developing countries in the field of biotechnology, genetic engineering, microbiology and other related areas[50].

Relationship with the 1925 Geneva Protocol  

The BW Convention does not expressly prohibit the use of biological or toxin weapons. It only states that the obligations assumed under the 1925 Geneva Protocol, which prohibits such use, remain valid[51]. However, adherents to the BW Convention are not necessarily parties to the Geneva Protocol. Moreover, the Convention stipulates that nothing in its provisions shall be interpreted as in any way limiting or detracting from the obligations assumed by States under the Geneva Protocol.

No specific measures are set forth in the BW Convention to verify compliance with the obligation not to develop, produce, stockpile or otherwise acquire or retain biological agents or toxins for “hostile purposes”. Indeed, hostile intentions, like any other intentions, cannot be verified. As mentioned above, the parties are not obliged to declare biological agents or toxins used in non-prohibited activities. Nor are they obliged to declare all laboratories engaged in research and development of substances that could be used as agents of warfare. This is a serious lacuna, because advances in biotechnology have made it possible to produce large quantities of potent toxic substances by a small number of people, in a short period of time, and in facilities which are difficult to identify. Such substances may be stored in inconspicuous repositories and eventually “weaponized”, that is, filled into missiles, bombs or spray systems. Consequently, a violator could relatively easily break out from the Convention.[52]

In 1992, the President of the UN Security Council stated, on behalf of its members, that proliferation of weapons of mass destruction, which include biological weapons, would constitute a “threat to international peace and security”, and that appropriate action would be taken to prevent it . That action could include the application of coercive measures under Chapter VII of the UN Charter. However, the statement of the President of the Security Council has no binding legal effect. Even if it were transformed into a formal decision of the Council to have such effect, it would not necessarily enable the Council to act in all pertinent instances. The power of veto possessed by the permanent members of the Council can always be used to protect violators of treaties, especially when the violator happens to be a great power.

Several allegations of non-compliance with the BW Convention have been made since the Convention entered into force. Those which received most attention were the “Sverdlovsk” and “Yellow Rain” cases.

The Sverdlovsk case[53]

In March 1980, the United States accused the Soviet Union of maintaining an offensive biological weapons programme which included production, weaponization and stockpiling of biological warfare agents. The accusation was based on the suspected airborne release of anthrax spores from a Soviet biological facility, which caused an outbreak of anthrax in the city of Sverdlovsk in April and May 1979 . The Soviet Union confirmed that there had been an outbreak of anthrax in the Sverdlovsk region, but attributed this occurrence to the sale of anthrax-contaminated meat in violation of veterinary regulations. It provided little additional information. The issue was the subject of bilateral US/Soviet consultations, and various groups of scientists met to evaluate the Soviet account of the incident,  but the US government maintained its accusation. In 1992, the Russian authorities admitted that a breach of the BW Convention had been committed. They undertook, under a decree issued by the President of the Russian Federation, to open secret military research centres to international inspection and convert them to civilian use.

The “Yellow Rain” case[54]

In 1981, the US government accused the Soviet Union of being involved in the production, transfer and use of trichothecene mycotoxins in Laos, Kampuchea and Afghanistan in violation of both the 1925 Geneva Protocol and the BW Convention. The allegation was categorically rejected by the Soviet Union. US charges were based on reports by alleged victims and eye-witnesses who stated that since the autumn of 1978 enemy aircraft had been spraying a toxic yellow material (hence the name of the case). Chemical analyses of samples of the yellow material and medical checks of the affected persons were conducted to substantiate the case. However, as the investigations proceeded, with the invol vement of laboratories in different countries and a careful scrutiny of the eye-witnesses’ reports, the reliability of the evidence was increasingly questioned. Some authoritative scientists found that the yellow substance consisted to a large extent of excrements of wild honeybees, and extensive analytical efforts in several laboratories failed to confirm the initial positive reports of trichothecenes.

Chapter VI

Biological Weapons and Public Health

In order to understand how bioterrorism relates to the public health system, one must first understand what public health means. The World Health Organization (WHO)defines health as “ a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.” 60 In contrast to the field of medicine where the physician’s main responsibility is to the health of an individual, a public health official’s main responsibility is the greater community. A 1988 Institute of Medicine (IOM) report on the future of public health defined the mission of public health as to “fulfill society’s interest in assuring conditions in which people can be healthy.”61 The scope of public health is enormous. According to the IOM, it is the responsibility of the American public health system to “serve as stewards of the basic health needs of entire populations, but at the same time avert impending disasters and provide personal health care to those rejected by the rest of the health system.”62 The public health system is the champion of clean water, safe food, sanitary living conditions, personal hygiene, and overall safe and healthy living. Given all of its responsibilities, the public health system works with limited financial and human resources, forcing it to prioritize. The CDC recently published of what it felt are the ten major public health challenges currently facing the American public health system. Included on this list was the need to prepare and respond to emerging infectious diseases, with the dual purpose of preparing for a bioterrorist attack.[55]

(i)      Infectious Disease- A public health priority

As long as humans have roamed the earth, there have been infectious diseases. By the middle of the 20th century, however, medical and public health professionals began to feel that they were winning the war against infectious diseases and the microbes that cause them through the development and use of vaccines and antibiotics. In 1967, then Surgeon General William H. Stewart declared a victory against infectious diseases, and by the 1970’s resources were being diverted to fight chronic illness and medical students were being steered away from infectious diseases as a specialty. Bioterrorism preparedness- as a public health priority Bioterrorism can be viewed as a public health priority through two mechanisms: [56]

1.       As a stand-alone threat that the public health system must be prepared for, and

2.       As a subset of emerging infections and infectious diseases.

In the event of a biological weapons attack on the United States, it can be assumed that a large number of people will fall ill and possibly die. Although the likelihood of an attack is much smaller than, for instance, the likelihood of people developing diabetes or lung cancer, the incredible number of people whose health and lives would simultaneously be affected necessitate that the public health community appropriate time and resources towards developing a bioterrorism response plan. The second reason why bioterrorism preparedness should be considered a top public health priority is that it overlaps with preparedness for emerging infectious disease and naturally occurring outbreaks of communicable and non-communicable diseases. The core functions of public health are assessment, policy development and assurance. Therefore, among other responsibilities, the public health system is tasked with providing ongoing surveillance of infectious diseases, as well as ensuring that people will have access to health services if necessary. The infrastructure needed to quickly identify and properly respond to a naturally occurring infectious disease outbreak will also identify an infectious disease outbreak caused by a biological weapon attack.

Chapter VII

Biological Weapon Convention in Indian Perspective

The Biological and Toxin Weapon Convention(BTWC or BWC in short) is a 1972 vintage convention which was signed by India in 1973 and ratified in 1975. The Convention currently has 155 State Parties that have ratified it. However, not enough public debate is ever devoted to this subject possibly due to lack of information or interest by the public at large. Regrettably, even members of the strategic community expend more time and energy on the other weapons of mass destruction, namely, nuclear and chemical vis-a-vis the biological threat.[57]

The Biological Weapons Convention was the first comprehensive disarmament instrument through which the international community committed itself to eliminating an entire category of weapons of mass destruction. Though it does not predate the Nuclear Non-Proliferation Treaty or NPT for short, the latter is by no means comprehensive, and, on the contrary, has created more friction than provided solutions to the aspect of nuclear proliferation. On the other hand, the Chemical Weapons Convention or CWC for short is a study in contrast since it also included an effective verification and compliance regime, which is absent in the case of the BTWC even.

Today, the aspect of bio-attacks and bio-terrorism is no longer in the realm of science fiction. As the then Indian Ambassador and Permanent Representative of India to the Conference on Disarmament, Shri Jayant Prasad put it during the last Review Conference in November 2006, “Advances in bio-technology, genetic engineering and life sciences, especially in the past two decades, their dual-use nature and easier access to them have increased the danger of proliferation and hostile use of biological warfare agents. The possibility that non-state actors, including terrorists could acquire and resort to the use of biological warfare agents and toxins has added a new dimension to this danger”.

The next Review Conference(REVCON) is scheduled to be held from 05-22 December 2011 in Geneva. According to the decision taken in the April 2011 Preparatory Committee (PREPCOM) meeting for the REVCON, the review conference will, in accordance with Article XII of the Convention, “review the operation of the Convention, taking into account,inter alia, new scientific and technological developments relevant to the Convention; the progress made by States Parties on the implementation of the obligations, under the Convention; progress of the implementation of the decisions and recommendations agreed upon at the Sixth Review Conference.”[2] So this is a good time for India to review its position and assess as to what it can realistically hope to achieve during the forthcoming REVCON. However, prior to analysing the possible outcomes of the REVCON, it is pertinent to anaylse the threat of bio-attacks and bio-terrorism to India as well as review the status of the BTWC in our neighbouring countries.

Threat of Bio-Attack and Bio-Terrorism to India[58]

There is no proof that biological warfare attacks have been carried out against India, but as per the experts, all the factors are very much in place and it is quite possible that such attacks may have been carried out.  One of the advantages of use of bio-agents by forces inimical to India is the “deniability” factor. While suspicions abound that the outbreak of pneumonic plague—well known in biological warfare—in Surat and bubonic plague in Beed in 1994 was a result of a possible bio-attack, nothing can be stated with clinching evidence. However, while in the absence irrefutable proof, it may not be possible to attribute the 1994 plague conclusively to external bio-warfare, what is indisputable is that this caused several deaths and sizeable economic loss to the country.

 

Dr Kamal Datta, director of the National Institute of Communicable Diseases, has alluded to some “suspicious” outbreaks, such as a 1996 outbreak of dengue in Delhi (10,252 cases; 423 deaths), and the outbreak of unidentified encephalitis in Siliguri, eastern India, in February 2001 (66 cases; 45 deaths)[3]. Both outbreaks have baffled Indian researchers.

Even if these are wished away as fanciful imaginings of a conspiracy driven mentality, is in the realm of the possible that such incidents may well happen in the future.

Status of the BTWC : Neighbouring Countries

China. China acceded to the BTWC on 15 November 1984. China has allegedly conducted considerable amounts of ostensibly defensive research on potential weapon agents like anthrax, tularemia and botulinum. US and Taiwanese sources even claim that China has an offensive biological weapons programme[4]. China has also reportedly invested in new technologies like biological engineering to improve its industrial base.

Pakistan. Pakistan signed the BTWC on 10 April 1972 and ratified it on 25 September 1974. Since early 1990s it has been alleged that Pakistan is conducting research into biological weapons, though the possible agents are unknown. US sources claim that Pakistan has the resources and capabilities necessary to support a limited offensive biological warfare research and development effort.

Issues for Discussion

The REVCON is expected to address a range of issues, including contingencies for investigating the alleged use of biological weapons, methods for providing international assistance to mitigate the impact of such use, and capacity building in the areas of disease surveillance, detection, and diagnosis. While the issues that may come up are many, among them, the ones that are important and have a deeper significance for India are the following[59]:-

(a)       Assistance and coordination.  Assistance and coordination in case of alleged use of biological weapons is an imperative need. In such an eventuality, in accordance with Article X of the convention, all nations must facilitate fullest possible exchange of equipment and technology. To quote from Article X, “The States Parties to this Convention undertake to facilitate, and have the right to participate in, the fullest possible exchange of equipment, materials and scientific and technological information for the use of bacteriological (biological) agents and toxins for peaceful purposes”.

(b)       Compliance, verification and monitoring. While these have come up in the earlier BTWC discussions, a consensual agreement has eluded the world community and till date the BTWC does not have a formal verification provision.   The major apprehension of the developed world, particularly the US, is that it will impinge its biotechnology industry. The US does not want to be subject to any verification measures under the treaty and it advocates national measures instead. No solution to the verification conundrum has been found as yet.

(c)       Balancing Dual Use Export Restrictions and Encouraging International Cooperation. There are a few countries which perceive that the best way to tackle the issue of bio-attacks and bio-terrorism is to curb the export of dual-use technology and material. They quote Article III which states that “Each State Party to this Convention undertakes not to transfer to any recipient whatsoever, directly or indirectly, and not in any way to assist, encourage, or induce any State, group of States or international organizations to manufacture or otherwise acquire any of the agents, toxins, weapons, equipment or means of delivery specified in article I of this Convention”.  However, India has maintained that there is no evident contradiction and that in accordance with Article X, international assistance and co-ordination is imperative. There is thus an urgent need to ensure that the threat of bio attacks is tackled without unduly restricting the use of these technologies for peaceful and useful purposes.

Chapter VIII

CONCLUSION

Biological weapons are unpredictable in their effects and of limited value in combat. Since cheating under a BW Convention could not yield significant military advantages to the cheating party, a ban on biological weapons without verification of compliance was considered by the negotiators to be free of serious security risks. By contrast, chemical weapons are predictable, capable of producing immediate effects and, consequently, useful incombat. Banning their possession without elaborate and intrusive methods of verification was, therefore, deemed impossible. Most states which joined the BW Convention did so on condition that the complete prohibition of biological weapons would be recognized as a step towards a complete prohibition of chemical weapons (Preamble and Article XI).

The aim of the BW Convention was not so much to remove an immediate peril, as to eliminate the possibility that scientific and technological advances, modifying the conditions of production, storage or use of biological weapons, would make these weapons militarily attractive. Indeed, progress in biotechnology is making it increasingly possible to “improve” upon known biological agents. Normally harmless organisms which do not cause diseases can be modified so as to become highly toxic and produce diseases for which there is no known treatment. But the Convention is comprehensive enough to cover all relevant scientific and technological developments, including biological agents and toxins that could result from genetic engineering processes.

The disclosure by the UN Special Commission of an extensive biological weapons programme in Iraq [36 ] , as well as reports that certain other nations, too, have or are seeking to acquire a biological weapon capability [37 ] , indicate that the threat of biological warfare remains real. Since the BW Convention has no instruments to check compliance, there is a need for verification machinery to deter would-be violators. Negotiations for a verification protocol, or another legally binding document strengthening the Convention with measures of control, have been going on in an ad hoc group of States, open to all parties, since January 1995. So far, however, agreement has proved elusive. Until it is reached, parties to the Convention are expected to implement the confidence-building measures they have agreed at their Review Conferences. The most important among them are measures enhancing the transparency of activities involving biological agents and toxins. They include exchanges of information on facilities and research programmes relevant to the Convention, on vaccine production, and on significant and unusual outbreaks of diseases.

Eventually, to make possible a differentiation between treaty-prohibited and treaty-permitted activities, the objects of the prohi bitions will have to be more clearly defined, and the criteria necessary to assess compliance will have to be unambiguously established. Moreover, apart from short-notice visits to declared sites, on-site inspections of undeclared sites will have to be accepted without reservation by all parties. It is, of course, understood that sensitive commercial proprietary information and national security information, not directly related to the BW Convention, must be reliably protected. A special organization will be needed to oversee the implementation of the parties’ obligations.

                                                                       Thanks by – Adv. Shyam Nath Sah

                                                                                                                                 

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[1] Jozef Goldblat (1997). The Biological Weapons Convention: An overview. International Review of the Red Cross, 37 , pp 251-265 (www.icrc.org as access on 10/04/2012)

[2] United Nations, Chemical and bacteriological (biological) weapons and the effects of their possible use , New York, 1969 (www.unog.ch as access on 08/04/2012)

[3] Supra. 1

[4] Houston Journal of International Law Spring, 2002, “ THE EXPANSION OF THE BIOLOGICAL WEAPONS CONVENTION: THE HISTORY AND PROBLEMS OF A VERIFICATION REGIME”( www.uk.westlaw.com)

[5] WHO guidance (www.emro.who.int/eha/pdf/bioweapons.pdf as access on 12/04/2012)

[6] ibid

[7] Encyclopaedia Britannica, www.britannica.com/EBchecked/topic/938340/biological-weapon as access on 28/04/2012

[8] 10/3/98, London Sunday Times:  This comes under the heading of "BIG SURPRISE" (www.slic2.wsu.edu  as access on 12/04/2012)

[9] Office of Population Research Princeton University WORKING PAPER SERIES, ‘Biological Weapons’ “A National Security Problem that Requires a Public Health Response” Working Paper 2001-04, Rebecca Katz Office of Population Research(http://opr.princeton.edu/papers/opr0104.pdf, as accessed on 11/04/2012)

 

[10]Houston Journal of International Law Spring, 2002, “ THE EXPANSION OF THE BIOLOGICAL WEAPONS CONVENTION: THE HISTORY AND PROBLEMS OF A VERIFICATION REGIME”( www.uk.westlaw.com)

[11] Office of Population Research Princeton University WORKING PAPER SERIES, ‘Biological Weapons’ “A National Security Problem that Requires a Public Health Response” Working Paper 2001-04, Rebecca Katz Office of Population Research(http://opr.princeton.edu/papers/opr0104.pdf, as accessed on 11/04/2012)

[12] This information was obtained from Prince Mikasa of Japan in 1994. Bio-Terry.com. Chronological

History of Biological Warfare and Terrorism. https://bioterry.com/History_of_Biological_Terrorism.asp

(accessed 11/04/2012)

[13] Supra. 10

[14]Michigan Journal of International Law, “CLEAR AND PRESENT DANGER: ENFORCING THE INTERNATIONAL BAN ON BIOLOGICAL AND CHEMICAL WEAPONS THROUGH SANCTIONS, USE OF FORCE, AND CRIMINALIZATION”,Spring 1999 (www.uk.westlaw.com as accessed on 13/04/2012)

[15] PROTOCOL FOR THE PROHIBITION OF THE USE IN WAR OF ASPHYXIATING, POISONOUS, OR OTHER GASES, AND OF BACTERIOLOGICAL METHODS OF WARFARE, GENEVA PROTOCOL (genev[1]pdf-adobe reader as accessed on 12/04/2012)

[16] Supra. 13

[17] Michigan Journal of International Law, “CLEAR AND PRESENT DANGER: ENFORCING THE INTERNATIONAL BAN ON BIOLOGICAL AND CHEMICAL WEAPONS THROUGH SANCTIONS, USE OF FORCE, AND CRIMINALIZATION”,Spring 1999 (www.uk.westlaw.com as accessed on 13/04/2012)

 

[18] Supra. 16

[19] ibid

[20] Biological weapon convention background information, (www.unog.ch/bwc. as accessed on 13/04/2012)

[21] ibid

[22] SEVENTH REVIEW CONFERENCE OF BIOLOGICAL WEAPONS CONVENTION, 6 December 2011 (www.unog.ch as accessed on 13/04/2012)

[23] SEVENTH REVIEW CONFERENCE OF BIOLOGICAL WEAPONS CONVENTION, 6 December 2011 (www.unog.ch as accessed on 13/04/2012)

[24] ibid

[25] Bureau of international security and nonproliferation, “convention on the prohibition of the development, production and stockpiling of bacteriological (biological) and toxin weapons and on their destruction”, www.state.gov/t/isn/4718.htm as accessed on 09/04/2012)

 

[26] Bureau of international security and nonproliferation, “convention on the prohibition of the development, production and stockpiling of bacteriological (biological) and toxin weapons and on their destruction”, www.state.gov/t/isn/4718.htm as accessed on 09/04/2012)

 

[27] ibid

[28] Journal of Conflict & Security Law The Biological Weapons Convention: securing biology in the twenty-first century
J.C. & S.L. 2010, 15(1), 25-43, 2012 Oxford University Press (www.uk.westlaw.com as accessed on 11/04/2012)

 

[29] Journal of Conflict & Security Law The Biological Weapons Convention: securing biology in the twenty-first century
J.C. & S.L. 2010, 15(1), 25-43, 2012 Oxford University Press (www.uk.westlaw.com as accessed on 11/04/2012)

[30] ibid

[31] Supra .28

[32] ibid

[33] World Health Assembly, ‘Global Health Security: Epidemic Alert and Response’ World Health Organization, Geneva, Doc WHA 54.14, 21 May 2001. Available at <http://apps.who.int/gb/archive/pdf_files/WHA54/ea54rl4.pdf> (accessed 6 January 2010).

[34] Supra .28

[35] Journal of Conflict & Security Law (2006), Vol. 11 No. 1, 93–118 ,doi:10.1093/jcsl/krl006 ,as access on 29/04/2012

 

[36] 311 JCSECL 93, rnal of Conflict & Security LawNATIONAL IMPLEMENTATION OF THE BIOLOGICAL WEAPONS CONVENTION”Spring, 2006 (Approx. 20 pages)

[37] Michigan Journal of International Law, Spring 1999,20 Mich. J. Int'l L. 477, "CLEAR AND PRESENT DANGER: ENFORCING THE INTERNATIONAL BAN ON BIOLOGICAL AND CHEMICAL WEAPONS THROUGH SANCTIONS, USE OF FORCE, AND CRIMINALIZATION"(http://uk.westlaw.com, as accessed on 08/04/2012)

[38] ibid

[39] S.C. Res. 687, U.N. SCOR, 46th Sess., 2981st mtg., U.N. Doc. S/RES/687 (1991). www.law.fsu.edu/journals/transnational/vol14_2/Caron.pdf (as accessed on 08/04/2012)

 

[40] Supra. 34

[41] 1949 I.C.J. 4 (http://www.unhcr.org/refworld/country,,ICJ,,ALB,,402399e62,0.html as accessed on 12/04/2012)

[42] 5 Temp. Int'l & Comp. L.J. 231 (1991)”Permissibility of State-Sponsored Assassination during Peace and War, The; Beres, Louis R”( http://heinonline.org as accessed on 12/04/2012)

[43] Supra. 34

[44] Supra. 34

[45] Article I of BWC

[46] Jozef Goldblat (1997). The Biological Weapons Convention: An overview. International Review of the Red Cross, 37 , pp 251-265 (www.icrc.org as access on 10/04/2012)

[47] Jozef Goldblat (1997). The Biological Weapons Convention: An overview. International Review of the Red Cross, 37 , pp 251-265 (www.icrc.org as access on 10/04/2012)

[48] ibid

[49] Article X of BWC

[50]Fourth Review Conference of the Parties to the BW Convention, document BWC/CONF.IV/9. (http://www.brad.ac.uk/acad/sbtwc/revconf/4final4.htm as accessed on 12/4/2012)

[51] Article VIII of BWC

[52] Supra 43

[53]Elisa D. Harris, “ Sverdlovsk and Yellow Elisa D. Harris Rain Two Cases of Soviet Noncompliance?”(www.jstor.org/stable/pdfplus/2538837.pdf as accessed on 12/04/2012)

[54] Canadian "Yellow Rain" Research: Does It Weaken the Case ( http://www.sciencemag.org/content/234/4776/528.1.full.pdf as accessed  on 12/04/2012)

[55] Office of Population Research Princeton University WORKING PAPER SERIES, ‘Biological Weapons’ “A National Security Problem that Requires a Public Health Response” Working Paper 2001-04, Rebecca Katz Office of Population Research(http://opr.princeton.edu/papers/opr0104.pdf, as accessed on 11/04/2012)

 

[56] ibid

[57] Colonel GG PamidiTHE, “BIOLOGICAL WARFARE CONVENTION REVIEW CONFERENCE: NEED FOR A PROACTIVE APPROACH” http://www.usiofindia.org/Article/?pub=Strategic%20Perspective&pubno=29&ano=827 as access on 30/04/2012

 

[58] ibid

 

[59] Colonel GG PamidiTHE, “BIOLOGICAL WARFARE CONVENTION REVIEW CONFERENCE: NEED FOR A PROACTIVE APPROACH” http://www.usiofindia.org/Article/?pub=Strategic%20Perspective&pubno=29&ano=827 as access on 30/04/2012