BASIC NOTES

1 May 2002

What Can the UN Do to Combat Biological Weapons?

By Michael Crowley

Introduction
The tragic events of 11^th September coupled with the subsequent anthrax attacks and hoaxes have greatly increased global concern over the risk of biological warfare and particularly bio-terrorism. However, the international community’s attempts to strengthen the prohibition against biological weapons (BW) by negotiating a legally binding Protocol to the 1972 Biological and Toxin Weapon Convention (BTWC) foundered when the United States rejected the draft Protocol text at the July 2001 Ad Hoc Group (AHG) negotiating meeting. This setback was reinforced and deepened at the November 2001 BTWC Review Conference when the United States called for the disbandment of the AHG.

Washington’s position, taken as a result of its concerns over national security, corporate intellectual property rights and enforceability, has left a dangerous gap in the international control regime.  And there is very little realistic hope that the Bush Administration will reverse its position. It will therefore be at least three years and possible seven before any US administration will examine seriously the case for strengthening the BTWC with a legally binding instrument. What might then be done during these coming years to make BW proliferation and use less likely? And what role can the United Nations (UN) play in combating BW? In discussing possible initiatives it will be important to examine areas where it might be possible to engage the US administration and to build upon, expand and internationalize those elements of US proposals where this is appropriate.

Tackling the BW threat should be a key priority for the UN over the coming years as the likely consequences of inaction are stark. As the Secretary General Kofi Annan forcefully 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 and its agencies in BW control, in four specific areas:

• Supporting the BTWC and enabling state compliance;

• Criminalizing breaches of the BW Convention;

• Disease surveillance and humanitarian assistance; and

• Facilitating verification of compliance.

Supporting the BTWC and enabling state compliance
The case for reinforcing the BW Convention by establishing supportive institutions to promote adherence to the BTWC has been raised repeatedly by States Parties, most recently at the suspended Review Conference of 2001. The UN and particularly the Department of Disarmament Affairs (DDA) could well play a key role if such structures came into being.

It has been envisioned that such institutions [1] would comprise firstly a representative Committee of Oversight formed from and mandated by the BTWC Review Conference. This would be supported by scientific and legal advisory panels and a small, dedicated secretariat which could well be a specified unit within the DDA. [2]  

These bodies - the committee of oversight, the secretariat and the advisory panels - would be ‘interim and supportive’ institutions: ‘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 Convention a focal point [3] and continuity of attention in the five-year intervals between Review Conferences. Possible roles for the interim Committee of Oversight and secretariat could include:

• Overseeing the effective application of the Convention and in particular following up the Review Conference 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 BTWC Review Conference in 1987;

• Facilitating the dissemination of information such as Review Conference documentation, lists of State 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 practice in, for example, domestic legislation prohibiting BW production and development. Such convergence would, in turn, facilitate the development of international controls. Though all the CBMs are politically binding commitments, they have only been, at best, patchily implemented.  Very few states parties have consistently fulfilled their requirements [4], even though a simplified reporting procedure for the CBM program has been in operation since April 1992 and each Review Conference has called for their adherence. The DDA, which at present holds copies of all the 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 BTWC Review Conferences only 144 countries (roughly 75% of states) are parties to the convention. Of the non-party states, 18 have signed but have not ratified, whilst a further 30 States never signed at all.  While some States, especially in the Middle East, have been resistant to joining the BTWC 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 secretariat with requisite legal resources. These bodies could likewise facilitate and encourage those states still with official reservations to the Geneva Protocol [5] – such as retaining a 'right' of retaliatory use of BW  – to withdraw them.

Criminalizing breaches of the BW Convention
In the run up to the BTWC Review Conference President Bush called on State Parties to “enact strict national criminal legislation against prohibited BW activities with strong extradition requirements”.

Although such national 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 enacted may lead to inconsistencies between national jurisdictions. What is needed is a universal criminalization of individual involvement in BW 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 [6]. 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 anywhere in the world, 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, both official and unofficial, would be enhanced, and international cooperation in suppressing the prohibited activities would be facilitated.

The legal organs of the UN would, of course, have a crucial role to play in such treaty development. It is important therefore that relevant bodies such as the Sixth Committee of the UN General Assembly, the UN Office of Legal Affairs and/ or the International Law Commission examine the Harvard Sussex draft treaty and give consideration to initiating a process to develop a legal instrument to ensure that breaches of the BTWC by individuals or groups are treated as an international crime.

Disease surveillance and humanitarian assistance
Preparing for biological warfare or terrorism has more in common with confronting the threat of emerging infectious disease than with 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 in. 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 States Parties to the BTWC have a crucial role to play in combating BW in the context of disease prevention. Whilst some important initiatives have been undertaken, above all by the WHO [7], the level of national and international preparedness, coordination and resourcing could be much improved, specifically in:

• Development and coordination of global disease surveillance, awareness and preventative measures; and

• Response to BW attack and provision of humanitarian assistance.

First, UN agencies have as yet under utilized vital coordination roles in assisting the States Parties to strengthen national and local programs of surveillance for infectious diseases and 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 disease surveillance programs and increased operation, coordination and access of existing databases on infectious disease in states parties.

Second, UN agencies can play a vital role in responding to biological weapons attacks.  The WHO, for example, could coordinate rapid provision of medical assistance, while the Food and Agriculture Organization of the United Nations (FAO) and the Office International des Epizooties [8] (OIE) could provide assistance if the attack was made on plants (FAO) or animals (FAO and/or OIE), 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 (OCHA) could also be called in.

Facilitating verification of compliance
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 BTWC. The first layer of activity and one that has been successful in the past is international compliance diplomacy. The UNGA, the UNSC, and the UN Secretary General have played crucial roles in encouraging State adherence to the BTWC, the Geneva Protocol and the general norm of BW prohibition. Where such compliance is in doubt the UN diplomatic corps headed by the Secretary General has a vital role in establishing how such concerns should be addressed by the mutual consent of all parties.

However, there will continue to be cases where such diplomacy fails and where there is a need for effective investigatory mechanism to determine compliance of the BTWC and the general prohibition on BWs. This was recently voiced in the draft Final Declaration of the November 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 BTWC verification Protocol, it did call for the establishment of voluntary compliance mechanisms as well as a mechanism 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 UN Secretary General that an inspection should take place.

However, under Article VI of the BTWC such a mechanism establishing a UN Security Council investigation system already exists [9] - although it has never been utilized. Considering the widespread concern that certain states have undertaken research and development of BW, 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 BTWC Review Conference? Part of the reason may lie in the perception that the UN Security Council, and by extension the office of the Secretary General, are heavily constrained from acting by geopolitical considerations and the requirement of Security Council consensus. Similarly, concerns have also been raised in the context of the operation of United Nations Special Commission (UNSCOM) – see box.

Unfortunately the US proposal for a Secretary General 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 abandoned Protocol negotiations.

Conclusions
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 BTWC. Such a regrettable state of affairs will provide a powerful test both of 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 focuses its enforcement efforts through the UN. Despite the difficult consensus building 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. 

[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’, paper presented by Nicholas Sims at the 14th workshop of the Pugwash Study Group on the implementation of the Chemical and Biological Conventions, Geneva, 18 November 2000.

[2] This was the pattern envisaged in 1991 when the possibility was first raised, and would follow the precedent of the practice of the UN Centre for Human Rights (now the Office of the High Commissioner for Human Rights) regarding the secretariat serving the Convention Against Torture and its oversight committee.

[3] At present there is no focal point for intergovernmental organizations such as Organization for the Prohibition of Chemical Weapons (OPCW) or World Health Organization (WHO), or for NGOs and the media to deal with, in relating to the BTWC States Parties as a whole.

[4] A study found that by 1996 only 75 of the BTWC 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

[5] 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 17 June 1925.

[6] See: Matthew Meselson, ‘Averting the exploitation of biotechnology’, Harvard-Sussex Program, (http://www.fas.org/bwc/papers/junemesel.htm); and ‘Strengthening the biological weapons convention’, CBW Conventions Bulletin no. 42, December 1998 (http://www.fas.harvard.edu). International Criminal Law and Sanctions to Reinforce the BWC, CBW Conventions Bulletin no 54, December 2001 (http://www.fas.harvard.edu)

[7] The WHO, for example, is trying to improve the situation with initiatives such as the Global Outbreak Alert and Response Network. Established in April 2000, this network links 72 existing networks around the world, many of which are equipped to diagnose unusual agents and handle dangerous pathogens. It aims to link electronically the expertise and skills needed to keep the international community constantly alert to the threat of outbreaks and provide it with a rapid response when needed.

[8] World Organization for Animal Health

[9] BTWC article VI
1) Any state party to this convention which finds that any other state party is acting in breach of obligations deriving from the provisions of the Convention may lodge a complaint with the Security Council of the United Nations. Such a complaint should include all possible evidence confirming its validity, as well as a request for its consideration by the Security Council.
2) Each state party to this convention undertakes to cooperate in carrying out any investigation which the Security Council may initiate, in accordance with the provisions of the Charter of the United Nations, on the basis of the complaint received by the Council. The Security Council shall inform the States Parties to the Convention of the results of the investigation.  

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