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Assessing U.S. Proposals to Strengthen the Biological Weapons
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Jonathan B. Tucker and Raymond A. Zilinskas

The Biological Weapons Convention (BWC), which bans the development, production, stockpiling, and transfer of biological and toxin weapons, has been hobbled since it took effect in 1975 by a lack of formal measures to monitor and enforce compliance. Sporadic efforts have been made over the years to correct these shortcomings, but to no avail.

Strengthening the BWC has become all the more essential since the fall of 2001, when mailed anthrax bacteria spores killed five Americans, sickened more than 20 others, and terrorized millions. Yet even as the threats of biological warfare and terrorism have become more acute, multilateral efforts to bolster the convention have faltered. More than six years of effort to negotiate a legally binding inspection protocol for the BWC collapsed in July 2001 when the United States rejected the draft protocol and walked away from the talks, leading to their suspension.

Last November, at a review conference of the BWC held in Geneva, the U.S. delegation proposed an alternative to the now-defunct protocol: a package of nine measures that member states could take to strengthen the convention and combat the threat of bioterrorism. All of these measures would involve passing domestic laws or adapting existing multilateral mechanisms. The U.S. ideas were generally viewed as constructive, although several delegations argued that they did not go far enough. Some of the U.S. measures were incorporated into a draft of the conference’s final declaration, a politically binding document. On the last day of the review conference, however, the United States caused an uproar by proposing to terminate the multilateral forum that had negotiated the BWC protocol. This proposal was unacceptable to many delegations and made it impossible to reach consensus on the final declaration. To prevent the conference from failing completely, the chairman suspended it for a year.

Between now and the resumption of the review conference in November 2002, BWC member states have time to evaluate the U.S. alternative measures and decide if they are worth pursuing formally. The following analysis suggests that some of the U.S. measures could be effective in addressing the problems of BWC noncompliance and bioterrorism, but only if they are broadened and converted into legally binding multilateral arrangements.

Evaluating the U.S. Package

The first set of measures proposed by the United States relates to a provision in the BWC requiring each state-party to adopt national legislation prohibiting and preventing anyone from carrying out activities banned by the convention on its territory or anywhere under its jurisdiction. To date, however, few BWC parties have passed domestic legislation imposing criminal penalties on individuals who engage in illicit biological weapons activities. Even the United States waited until 1989 to pass the Biological Weapons Antiterrorism Act, which imposes criminal penalties up to life imprisonment on a U.S. national who acquires a biological weapon or assists a foreign state or terrorist organization in obtaining one.

Under the new U.S. proposal, BWC member states that have not already done so would be urged to adopt domestic legislation criminalizing the acquisition, possession, and use of biological weapons. As a key element of such legislation, each state-party would improve its ability to extradite biological weapons fugitives to countries prepared to assume criminal jurisdiction. Yet the drawback of relying exclusively on domestic legislation to address the illicit use of microbiology is that national laws are not an effective means of creating uniform international standards. Legislation criminalizing the possession and use of biological weapons could vary considerably from country to country, creating loopholes or areas of lax enforcement exploitable by terrorists. Moreover, if history is a guide, many BWC members will not pass such legislation at all, and of those that do, some will neglect to enforce it. As an alternative approach, the nonprofit Harvard Sussex Program on CBW Armament and Arms Limitation has developed a draft convention criminalizing the possession and use of biological weapons. This draft could serve as a starting point for the negotiation of a multilateral treaty setting legal guidelines for the prosecution of those who acquire and use biological weapons.1

The U.S. package also calls on BWC member states to adopt and implement strict national regulations on access to particularly dangerous pathogens, along with guidelines for the physical security and protection of culture collections and laboratory stocks. Within the United States, the federal Centers for Disease Control and Prevention began in 1997 to regulate interstate transfers of 36 particularly hazardous human pathogens and toxins, permitting such exchanges only between registered facilities that have legitimate reasons for working with these agents and that possess the necessary biosafety systems. The Department of Agriculture established similar regulations on transfers of dangerous plant and animal pathogens. In the aftermath of September 11, Congress has moved to strengthen the statutory framework relating to biological weapons by including an explicit prohibition on the possession (as well as transfer) of biological agents and delivery systems for other than peaceful purposes.2

Even so, tighter national regulations on access to dangerous pathogens, although desirable, will not significantly reduce the global threat of bioterrorism unless such controls are implemented internationally. Thousands of academic, government, and industrial laboratories throughout the world work with dangerous pathogens, and more than 1,500 microbial culture collections sell or furnish microorganisms for research purposes.3 Yet restrictions on access vary from country to country and, indeed, from facility to facility. For this reason, the United States should propose that the UN General Assembly adopt a “Biosecurity Convention” requiring countries to follow uniform guidelines for who is given access to dangerous pathogens, as well as universal standards of physical security for those institutions authorized to work with them.

Other U.S.-proposed measures to strengthen national implementation include oversight of high-risk genetic engineering experiments and a professional code of conduct for scientists working with dangerous pathogens. These steps, although useful for maintaining national biosecurity, are unlikely to have much impact on states’ compliance with the BWC.

The second set of measures in the U.S. package aims to strengthen provisions of the BWC that deal with assisting victims of biological attacks and promoting scientific and technical cooperation among member states. Proposed steps in these areas would require BWC parties to adopt and implement strict biosafety procedures for handling dangerous pathogens, based on those developed by the World Health Organization (WHO) or equivalent national guidelines; to enhance the WHO’s global disease surveillance and response capabilities; and to establish international rapid response teams that would provide emergency and investigative assistance, if required, in the event of a serious outbreak of infectious disease.

The primary purpose of establishing a global epidemiological surveillance and response system under WHO auspices would be to detect and respond to natural outbreaks of infectious disease around the world. Yet such a system could also help deter the covert use of biological weapons by increasing the probability that an outbreak arising from an intentional release of agent would be promptly investigated, recognized as non-natural in origin, and attributed to a state or terrorist organization; and by helping public health professionals to contain a deliberate epidemic at an early stage and thus reduce its military impact. Despite these potential benefits, it would be unwise to link WHO’s activities in the field of international health to the monitoring of state compliance with the BWC. The reason is that WHO epidemiologists can investigate disease outbreaks only at the invitation of host countries. Suspicion that the organization was serving as a front for BWC-related investigations would compromise WHO’s political neutrality and hence its ability to conduct field operations and studies. Thus, although the U.S. proposal to increase resources for global disease surveillance is welcome, such funds should be provided through a special contribution to the WHO budget.

The third set of U.S. proposals seeks to strengthen BWC provisions that address concerns over treaty compliance. One measure would establish a “voluntary cooperative mechanism” for clarifying and resolving compliance disputes by mutual consent, through exchanges of information, scientific visits, and other activities. Yet this mechanism would not be an improvement over the existing consultation procedure, in which BWC member states can meet to examine evidence presented by both sides in a compliance dispute and decide whether a breach of the treaty has occurred. The problem with relying on information provided by the contending parties is that the consultative process can easily become a propaganda circus. In 1997, for example, Cuba accused the United States of having deliberately released an insect pest, Thrips palmi, from an overflying aircraft to damage Cuban agriculture and requested a special consultative meeting to address the matter. Despite the Cuban allegation and the U.S. rebuttal, the lack of objective scientific and technical data made it impossible for the participating countries to come to a definitive judgment on the merits of the case. This experience suggests that a mechanism for addressing BWC compliance concerns can be effective only if it is implemented by an independent, objective, and competent third party.

UN Field Inspection Procedure

The most interesting measure in the U.S. package, and one of the few to address BWC compliance directly, is a proposal for conducting field investigations of the alleged use of biological weapons and suspicious outbreaks of infectious disease. To perform this mission, the United States proposes to adapt an existing but little-known procedure whereby the secretary-general of the United Nations can initiate investigations of alleged violations of the BWC, the 1925 Geneva Protocol (which bans the use of chemical and biological weapons in war), or “customary international law.” He can do so by assembling a group of experts from various countries and dispatching it to the site of a reported attack to conduct an objective scientific inquiry. In the late 1980s, the General Assembly and the Security Council empowered the UN secretary-general to launch such field investigations on his own authority, without first securing approval from a majority of member states. The main weakness of the current system, however, is that the accused or affected country is under no obligation to cooperate with the investigators. Accordingly, the United States proposes to strengthen and broaden the existing UN investigation procedure by authorizing the investigation of suspicious outbreaks of disease and by urging BWC member states to accept investigations on their territory without the right of refusal.

Because several UN field investigations have already taken place, the historical record offers some useful insights into the value of the U.S. proposal. Between April 1981 and July 1992, the secretary-general dispatched expert groups to investigate four cases of alleged chemical or toxin weapons use: by the Soviet Union and its allies in Southeast Asia and Afghanistan, by Iraq and Iran during the Iran-Iraq War, by the Mozambican National Resistance in Mozambique, and by Armenian forces in Azerbaijan.

Although the four cases all dealt with alleged chemical or toxin weapons use, the proposed investigations of biological weapons use and suspicious outbreaks of disease would involve similar procedures.

This historical record (see box) demonstrates that UN field investigations can yield useful findings if they are carried out shortly after an alleged attack and if the investigating team is granted full access to the affected sites and people. Under these optimal conditions, small groups of three to five experts can carry out field investigations rapidly and cheaply. Thus, the U.S. proposal has a workable foundation.

Nevertheless, it is unrealistic to expect UN member states to accept international investigations on their territory in the absence of a treaty that provides legally binding rights and obligations. During the early 1980s, for example, Laos, Cambodia, and Afghanistan denied UN investigators access to the sites of alleged toxin attacks, with the result that the investigations could not be carried out properly and the findings were inconclusive. Further, when Iraq used chemical weapons against its Kurdish population in 1988, the Iraqi government denied the secretary-general’s request to launch an investigation. Because the accused countries were under no legal obligation to cooperate, the political consequences of their refusal were minimal. Thus, the historical record suggests that the existing UN field investigation mechanism could not be effective at enhancing BWC compliance unless member states negotiate a legally binding agreement requiring them to accept field investigations initiated by the secretary-general and to cooperate with the investigators.

One potential problem with negotiating such an agreement is that some of the more radical members of the Nonaligned Movement (NAM), such as China, India, Pakistan, and Iran, will attempt to link their acceptance of a strengthened UN field investigation regime with the demand that the industrialized countries grant the developing countries greater access to dual-use biotechnology equipment and materials. The radical NAM states also want to eliminate the Australia Group, an informal forum of 33 industrialized countries that coordinate their national export controls on chemical weapons precursors, microbial and toxin agents, and dual-use production equipment. Yet the United States and other Australia Group members are intent on preserving national export controls vis-à-vis countries assessed to have offensive biological warfare programs, including some BWC members. Recognizing this potential problem, the United States and other like-minded states should strive to keep the mandate of the proposed negotiation focused narrowly on strengthening the UN field investigation mechanism.

Another potential problem with the current UN procedure is the role of the secretary-general as the sole arbiter of whether to launch a field investigation. On the one hand, giving an authoritative individual the power to initiate a field investigation speeds up the deliberative process and makes it more likely that the investigation will be timely. On the other hand, it is possible that a future secretary-general could be influenced politically in a way that calls the integrity of the process into question. A secretary-general who is up for reappointment, for example, might decide whether to launch a field investigation based on the political support he would gain or lose. To address this problem, the Security Council should instruct the secretary-general to follow the criteria for launching an investigation that were developed by a UN expert group in 1989. In general, a field investigation should proceed if two questions can be answered in the affirmative: Did the alleged incident occur on the territory of a member state? If the alleged incident were to be confirmed, would it violate the BWC or the Geneva Protocol?

A further issue with strengthening the UN mechanism is that the financial resources of the UN secretariat are currently too limited to support extensive field investigations. Although in the past the secretariat was able to fund investigations with the help of cooperating governments, these efforts were small-scale and short-term. For investigations in Mozambique and Azerbaijan, the governments that voluntarily provided experts also paid their salaries. The United Nations covered the expenses of UN staff members who assisted the expert groups, and the secretary-general’s office (which has a small discretionary fund for unforeseen activities) paid for the experts’ travel and accommodation. In addition, the Swiss government provided a small Lear jet to transport the investigation team to and from Baku, Azerbaijan.

If, however, the occasion arose for the investigation of a major BW program on a scale of that of the Soviet Union or Iraq, or if a suspicious disease outbreak demanded an in-depth epidemiological analysis, it is unlikely that the UN secretariat would have the resources for the task. The sole branch of the secretariat possessing relevant expertise, the Department of Disarmament Affairs (DDA), has an annual budget of only about $7 million—less than what the UN pays for cleaning services at its New York headquarters—and has no discretionary funds for carrying out field investigations. Although DDA staff could approach UN member states and request special contributions to fund field investigations, it is far from certain that enough money would be forthcoming. Thus, if a country were to lodge a complaint that another state was violating the BWC, the secretary-general could probably not launch a field investigation unless the complainant nation was prepared to cover the costs.

To address this problem, sufficient funds should be assessed from member states to establish a small foundation within the UN to pay for field investigations initiated by the secretary-general. As a first step, the secretariat should prepare a rough estimate of how much it would cost to carry out five small investigations and two large ones. (A small investigation would involve an expert group of no more than five scientists working in the field for less than a week; a large investigation would involve an expert group of up to 10 persons working in the field for several weeks or months.) The funds required for this purpose would be deposited in the new UN foundation. If no field investigations were requested over the next few years, there would be no need for further contributions. If some investigations take place, however, their actual cost would become known and additional funds could be assessed to replenish the foundation’s assets.

Finally, although the existence of a mechanism to investigate allegations of use could help to deter BWC member states from employing biological weapons, it would do little to prevent violators from acquiring such weapons in the first place. Thus, it would be preferable not to have to wait until biological weapons have actually been used before the secretary-general can launch an investigation. The more ambitious goal of preventing acquisition as well as use would require granting the secretary-general the authority to investigate facilities suspected of developing, producing, and testing such weapons, an option that the U.S. proposal does not include.

Conclusion

Relying exclusively on domestic legislation and existing multilateral arrangements, as proposed by the United States, would not be sufficient to reinforce the international ban on acquisition and use of biological weapons or to address BWC compliance concerns. To put real teeth in some of the U.S. measures, such as restrictions on access to dangerous pathogens and an enhanced UN field investigation procedure, these steps should be made legally binding and broader in scope, and a workable funding vehicle established to pay for them. Only if these criteria are met will the U.S. measures offer an effective means of strengthening the global prohibition on biological weapons, at a time when it is increasingly under siege.


UN Field Investigations: The Historical Record

In the late 1970s, the United States claimed that Soviet-allied governments in Laos, Cambodia, and Afghanistan were employing chemical weapons against native resistance forces in these countries, including the H’mong tribesmen in Laos who had fought on the American side during the Vietnam War. Responding to U.S. political pressure, the UN General Assembly adopted a resolution in December 1980 asking the secretary-general to investigate the alleged incidents of chemical warfare in Southeast Asia and Afghanistan. The secretary-general agreed and dispatched a group of experts from Egypt, Kenya, Peru, and the Philippines, who conducted field investigations between April and November 1981 in both areas. The UN expert group’s findings were inconclusive, however, for three reasons: the long delay between the alleged attacks and the investigations, the refusal by the accused governments to cooperate with the United Nations by granting the investigators access to the alleged attack sites, and the unreliable and contradictory testimony of purported eyewitnesses. Dissatisfied with this outcome, the General Assembly asked the secretary-general to launch a follow-on investigation.

By this time, the United States had begun alleging that Soviet allies in Laos and Cambodia were using a mixture of fungal toxins (mycotoxins) known as “yellow rain” as a warfare agent against local resistance forces. In Afghanistan, the United States claimed that Soviet military forces were using both standard chemical weapons and mycotoxins against mujaheddin rebels. Taking note of the U.S. allegations, the secretary-general dispatched a second expert group to both regions in early 1982, including experts from Austria, Ecuador, Egypt, France, the Philippines, and the United States. Like the first expert group, the second group was denied access to alleged attack sites in Laos, Cambodia, and Afghanistan and had to rely on indirect evidence, such as interviews with alleged victims housed in refugee camps in Thailand and Pakistan. Accordingly, the findings of the second investigation were again inconclusive. In its final report, the second expert group wrote that, although it “could not state that the allegations had been proven, nevertheless it could not disregard the circumstantial evidence suggestive of the possible use of some sort of toxic chemical substance in some instances.”

The failure to determine whether chemical and toxin weapons had been used in Southeast Asia and Afghanistan demonstrated the need to launch an investigation shortly after an alleged attack, when the forensic evidence was still fresh, and to gain full access to the affected sites and attack victims. Accordingly, the General Assembly adopted a resolution in December 1982 requesting the secretary-general to investigate promptly all allegations brought by member states. This resolution also called on the secretary-general to compile and maintain lists of qualified experts and reference laboratories capable of analyzing environmental and biomedical samples and to develop detailed investigation procedures. In response, the secretary-general appointed an expert group to perform these tasks. The experts also developed criteria to guide the secretary-general when deciding whether to mount a field investigation. Two key criteria were that a complaint should be lodged soon enough after an alleged attack for an investigation to obtain “evidence of value” and that the complaint should include compelling evidence of the hostile use of a chemical or biological agent.

A second set of UN field investigations took place during the Iran-Iraq War, which lasted from 1980 to 1988. In response to a complaint lodged by the Iranian government in November 1983, the Security Council (not the General Assembly) asked the secretary-general to investigate whether Iran’s forces had been subjected to Iraqi chemical attacks. In March 1984, the secretary-general duly dispatched to Iran a group of experts from Australia, Bulgaria, Egypt, France, the Netherlands, the Soviet Union, Spain, Switzerland, Sweden, and the United States. Iran granted the team full access to the alleged attack sites and victims. In April 1985, the secretary-general asked UN expert Manuel Dominguez of Spain to examine Iranian soldiers who had survived alleged chemical attacks and were hospitalized in Belgium, England, and West Germany. Later, in response to further Iranian allegations of Iraqi chemical weapons use, the secretary-general dispatched additional expert groups to Iran in February and April of 1986 and May and August of 1988. All of the investigations found that Iranian troops had been attacked at various times with aerial bombs or artillery shells containing mustard gas, nerve agents (tabun and sarin), and unknown pulmonary irritants.

In 1986, Iraq alleged that Iran was using chemical weapons against its troops and asked the secretary-general to initiate a field investigation. A UN expert group visited Iraq in April 1986 and concluded that Iraqi soldiers had been exposed to mustard gas and an unknown lung irritant. Two subsequent Iraqi allegations resulted in additional UN investigations, the last in July 1988. In all of these cases, the Iraqi government cooperated fully with the UN investigators. The international community, however, did not respond to the repeated violations of the 1925 Geneva Protocol by Iraq and Iran, and both sides continued to employ chemical weapons until the end of the war.1 This experience points out the need for the international community to respond to the positive findings of a UN investigation with strong political action, such as the imposition of economic sanctions.

Iraq’s cooperation with the UN ended abruptly in August 1988, when Iraqi forces began using mustard gas and nerve agents against dozens of Kurdish villages in the northern part of the country. At the request of 10 states, the UN secretary-general wrote a letter to the Iraqi government requesting permission to launch a field investigation of the alleged chemical attacks. But Iraq denied the request on the grounds that its treatment of the Kurds was an internal affair, and the UN did not pursue the matter further.2

In 1992, chemical weapons were allegedly used in conflicts in Mozambique and Azerbaijan. This time, the secretary-general, empowered by General Assembly and Security Council resolutions adopted in 1987 and 1988, acted on his own authority to launch field investigations. In January 1992, the government of Mozambique sent a letter to the secretary-general alleging that guerillas of the Mozambican National Resistance (Renamo), a rebel organization established with the help of the Rhodesian intelligence service and supported by the apartheid government of South Africa, had attacked Mozambican government forces with chemical weapons. Mozambique requested an investigation of the incident, and on March 18, the secretary-general appointed three experts from Sweden, Switzerland, and the United Kingdom, supported by two UN officers. This group visited Mozambique on March 23-27. In addition to conducting interviews with alleged victims, the experts visited the alleged attack site and collected biomedical and environmental samples for analysis. The team finished its work, including a written report, by March 28.

The UN experts concluded that the Mozambican victims’ signs and symptoms were “consistent with the use of an atropine-like chemical” but could also have been caused by severe heat stress. Moreover, analyses of environmental samples were negative for 20 common chemical warfare agents, although the extended lapse of time between the alleged attack and the sampling made it possible that chemical agents could have degraded to the point that they were no longer detectable. Still, the findings were sufficiently compelling to lay to rest most concerns about the alleged use of chemical weapons in that conflict.

Later in 1992, the secretary-general launched a second investigation of chemical warfare, this time in Azerbaijan. After the breakup of the Soviet Union, Azerbaijan and Armenia became embroiled in conflict over the region of Nagorno-Karabakh, an enclave within Azerbaijan populated mainly by Armenians. In April and May 1992, Armenian irregular forces attacked the Azerbaijan army, and Azerbaijan sent a letter to the president of the Security Council charging that the Armenians had used chemical weapons. Armenia rejected the allegation and requested a UN investigation to clear its name.

On June 19, 1992, the secretary-general appointed three experts from Belgium, Sweden, and Switzerland, assisted by two members of the UN secretariat. The team arrived in Azerbaijan on July 4 and conducted its investigation on July 5-8, including visits to two alleged attack sites, interviews with purported attack victims, and consultations with Azerbaijani and Armenian officials. No samples were collected. In its final report, the expert group concluded that it had obtained “no evidence of use of chemical weapons” and that the contaminants that the Azerbaijanis claimed were indicative of chemical warfare, such as cyanide, were probably by-products of conventional weapons. These negative findings were sufficiently convincing to halt further allegations against Armenia. An interesting aspect of this case was that the country requesting the investigation was the accused party rather than the accusing one. This “role reversal” showed that disproving an allegation of use could have substantial political benefits.

The cases of Mozambique and Azerbaijan demonstrate that, under optimal conditions, UN field investigations of alleged use can be carried out rapidly and cheaply, yet provide meaningful results. Nevertheless, the failure of the UN investigations in Southeast Asia and Afghanistan in 1981-82, and the refusal of Iraq to accept an investigation of its chemical attacks against the Kurds in 1988, indicate that the existing mechanism can yield meaningful results if, and only if, the host government cooperates fully.

NOTES
1. Iran acceded to the 1925 Geneva Protocol on November 5, 1929, and Iraq acceded on September 8, 1931. Iraq ratified the protocol with the reservation that it would not be bound by the prohibitions toward any state that used chemical or biological weapons first. Iran did not attach any condition to its accession, but because the reservations made by other countries have effectively transformed the Geneva Protocol into a no-first-use treaty under customary international law, and because the protocol is in the form of a contract among the parties, Iran may have considered itself freed of its treaty obligations toward Iraq because it was attacked first.
2. James Bruce and Tony Banks, “Growing Concern Over Iraqi Use of CW,” Jane’s Defence Weekly, September 24, 1988, p. 715.


NOTES
The authors are grateful to Derek Boothby for useful comments and Erika Holey for research support.
1. Harvard Sussex Program on CBW Armament and Arms Limitation, “A Draft Convention to Prohibit Biological and Chemical Weapons Under International Criminal Law,” The CBW Conventions Bulletin, December 1998, p. 1-5.
2. Diana Jean Schemo, “Bill Would Require Laboratories to Adopt Strict Security,” The New York Times, January 25, 2002, p. 11.
3. William J. Broad, “World’s Largest Germ-Bank Union Acts to Keep Terrorists From Stealing Deadly Stocks,” The New York Times, October 23, 2001, p. B9.


Jonathan B. Tucker is director and Raymond A. Zilinskas is deputy director of the Chemical and Biological Weapons Nonproliferation Program at the Center for Nonproliferation Studies of the Monterey Institute of International Studies.

 

Posted: April 1, 2002