27 September 2020, NIICE Commentary 6037
Anushka Saxena
Biological weapons are natural organisms and agents, or cultured/ genetically engineered substances extracted from plants, animals or infected human beings, with the intention of being used as weapons to inflict harm upon human populations, animals and plants (mainly food crops). The earliest examples of bioweapons being used for war come from World War I, wherein evidence exists of Germany having used agents like anthrax, glanders and cholera viruses to infect war animals (such as horses) in Romania and Argentina. Biological agents can also spread themselves quickly, owing to Human activities such as deforestation and industrialisation, the best example of which comes from the deliberate Smallpox attack conducted as part of a war-game in the United States in June 2001, which we popularly know as “Operation Dark Winter”. The threat is added on to by the fact that the transmissions of such agents can be through water, aerosols or food, and one would never know they have been infected, until much later. The earliest recognised attempts to subdue the proliferation of biological agents as weapons was through the United Nations Geneva Protocol of 1925, which prohibited War of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of Warfare, and it was followed by the effective establishment of the Biological and Toxin Weapons Convention (BTWC or BWC) in 1975 (it was open for ratification in 1972), which banned such activities.
We understand that the Biological Weapons Convention was the result of prolonged international negotiations to supplement the 1925 Geneva Protocol, which prohibited the use, but not the acquisition, possession, stockpiling or development of biological weapons. Fortunately, the BWC does that. However, the then-ignored aspects of Biological warfare now become the shortcomings of the Convention, and fail to bring it into the 21st century. To begin with, there is no universality for the BWC. 183 states are party to the BWC. So, the 12 states parties that are yet to deposit their ratification or accession to the convention, have no purposeful reason to not do so, especially in today’s scenario. With 195 States parties being party to the BWC, we can develop “universal standards” for banning an entire class of weapons of mass destruction.
Perhaps the biggest shortcoming of the BWC is the lack of mechanisms for monitoring compliance and verification of States parties to the Convention. So essentially, while there is a convention, there is no International body binding to the task of monitoring compliance of the state’s parties to the same, unlike the Chemical weapons convention, for which the Organisation for the Prohibition of Chemical Weapons (OPCW) exists. There exists an Implementation Support Unit, which was formed after the sixth review conference of the BWC in 2006, to support state parties in the implementation of the BWC, but its functioning is highly impeded in terms of funding and financing, as well as by limited staffing.
Now in order to establish increased transparency, the concept of Review Conferences, which are high-level diplomatic meetings conducted at the UN Office of Disarmament Affairs in Geneva, Switzerland at every five years, was introduced. The Eighth review conference was conducted in 2016. These reviews conferences have had some degree of success in terms of reviewing verification and compliance of BWC at the country-level. For example, parties to the BWC agreed at the Second Review Conference in 1986 to introduce confidence-building measures (CBMs), which require States parties to annually report about their activities in high-biosafety-level laboratories, and to exchange information on biodefense programs, but these CBMs were not legally binding as well, so the States Parties had no obligations to comply with them.
The shortcomings are added on to by the fact that BWC compliance is especially difficult since biological agents can be cultured rapidly, especially for medicinal purposes, and many such agents may occur naturally as well, making them very easy to obtain. This brings me to talk about Article 1, sub-clause 1 of the convention, which says that the ban is on microbial or other biological agents, or toxins, whatever their origin or method of production maybe, of types and in quantities that have no justification for “prophylactic, protective or other peaceful purposes”. This gives quite a leeway for States Parties to keep stockpiling or developing agents on account of their “prophylactic/ peaceful use”. A simple example is the State of Iran, which has quite a sophisticated biopharmaceutical industry, but at the same time it has been found to possess agents like anthrax, botulinum toxin, and the plague bacteria (yersinia pestis), all in the name of peaceful purposes, which, in my opinion, must rings alarm bells for the international community.
Finally, past and potential biological terrorist attacks emphasise one of the BWC’s greatest challenges - the convention lacks description of norms that can regulate the behaviour of non-state actors, who were not taken seriously when the convention was first drafted, but today, they have the capacity to both procure, and spread widely, any cultured or naturally acquired bio-agent. One can observe that in incidents like the subway sarin attack in Tokyo (1995) carried out by the Aum Shinrikyo cult, or the Salmonella bio-terror attack (1984) carried out by the Oregon Rajneeshees, large populations were impacted, hospitals flooded, governments astounded and the devastating capacities of violent non-state actors understood. The pace of biotechnology has expanded exponentially, dual-use of bio-agents is largely possible, and gene editing techniques are now available to every lab in every corner. This poses the greatest challenge for a strong prevention and response framework. So, considering the fact that the world today is infested with actors who are primarily recognised as terrorist in nature, this particular inadequacy places the BWC in a vulnerable position in a world increasingly aware of the threat of bioterrorism.
Dealing with the Shortcomings
The first, most important step would be the formation of a Verification Protocol, especially for countries that continue to develop, stockpile and research on bioweaponry. Such a protocol was being discussed in the fifth review conference of the BWC in 2006, but negotiations broke down drastically. I am assuming that after the COVID-19 pandemic, and the global realisation regarding the drastic impacts on the spread of an invisible, unknown biological agent, the need for the same will be re-realised. Also, such a Protocol must be supported by a Bio-Verification Panel. Such a panel should be appointed by every member country, to investigate laboratories dedicated to research on bacteriological agents and toxins on behalf of the Implementation Support Unit, which I have talked about earlier, and conduct such an investigation without bias and without causing harm to national security interests of any nation-state. Such panels can work collaboratively and maintain total transparency, and any information or development pertaining to biotechnology, if it can be potentially used as or to create bioweaponry, must be directly reported to the Implementation Support Unit and the UN office of Disarmament Affairs, so that action can be taken. Of course, the functioning of these verification panels should be funded by States parties undertaking investigations to this effect, and on a voluntary basis by any States party willing to contribute.
Secondly, an international organisation on Biological Weaponry and Warfare, which shall seek to work specifically on identifying agents/ pathogens/ creatures/ substances that may or do serve as biological weapons, should be formed as part of the UNODA mandate, separate from the World Health Organisation (which also carries out biological weapons research). The biggest issue upon the release of a bio-terror agent is the lack of understanding about its pathogenesis and its epidemiology. So, such a dedicated organisation can help the world undertake the process of understanding the features of such an agent faster, which will enable countries to take relevant steps. The organisation can be funded by all parties who are signatories to the BWC, both voluntarily and in accordance with a formula for mandatory payments (very similar to how the UN itself is funded), and shall be answerable to the UN Security Council, which shall have the authority to take further action and impose penalties or sanctions, in accordance with the aforementioned Verification Protocol. In case of a “misused” veto in the UNSC on such penalising action, the penalties can be imposed by the International Criminal Court, with investigative actions undertaken suomoto, or through a reference from the UNSC, and in accordance with the evidence collected under the international criminal law.
Thirdly, in accordance with the ideas and principles of the now de-established United Nations Monitoring, Verification and Inspection Commission (UNMOVIC), countries need to be encouraged to enable participation of NGOs and international organisations in non-proliferation of biological weapons, especially in mediating with miscreant non-state actors that may possess such weaponry in war-torn regions (The MENA Region being a case at hand, where actors like Al Qaeda and ISIL have been known to possess and use bio-agents for attacks). What is also important is the peaceful exchange of information, data, small-scale samples and technological know-how on biological agents and their pathogenesis, so as to promote scientific discovery, enhance response mechanisms, discover applications of bacteriological agents in medication, or for other peaceful, civilian purposes. Lastly, all States parties must develop rapid response mechanisms to understand the epidemiology of emerging biological agents and to deal with them accordingly, especially through the deployment of a scientific and medical response team which will study coding of these agents and give possible immunising solutions. This can be complemented with the implementation of a national plan for safety, shelter and immediate healthcare-based redressal for citizens in the face of an unprecedented bio-terror attack, and such a plan should ensure fast and steady manufacturing and distribution of protective gears and sanitising agents, certified under a unified testing oversight, to citizens, healthcare professionals and law enforcement and administrative personnel. This is very similar to the disaster management plans most countries develop in case a natural calamity strikes.
Most importantly, the need of the hour is for all states parties in the world to work towards verification and compliance, as well as towards reforms of the BWC for greater universality, betterment of implementation, and inclusion of mechanisms on how to deal with terrorist and violent non-state actors.
