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First, Do No Harm

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Robert P. Kadlec

The history of the Biological Weapons Convention (BWC) is punctuated by several paradoxes. It was the first treaty to ban an entire class of weapons, yet it does not contain a single provision to ensure states-parties' compliance. It is also a treaty that was grossly violated in letter and spirit by one of its three depositories, the former Soviet Union. Finally, since the BWC entered into force in 1975, the number of states-parties suspected of pursuing biological weapons has actually increased.

Events during and after the Persian Gulf War highlighted the danger of this situation. The Iraqis produced large quantities of anthrax, botulinum toxin, and possibly other agents, which they weaponized and deployed. Iraq was not a party to the convention before the war, but it acceded following its defeat in 1991. Nevertheless, information provided by Hussein Kamel, the son-in-law of Saddam Hussein, following his defection in 1995 indicated that Iraq sought to maintain and possibly expand its BW program even after it had agreed to abide by the treaty. What makes this story so nettlesome is that Iraq did so while under the constant watchful eyes of the United Nations Special Commission (UNSCOM).

The experience underscored the international effort to reaffirm the BWC's prohibitions and, if possible, strengthen states-parties' compliance through a legally binding protocol. With less than a year before the fifth BWC review conference, the chairman's text arrives at a most propitious time, but the text is something of a mixed bag. It does provide a point of departure and present some specific measures to address a number of weaknesses in the existing treaty. But enacting all its draft provisions could have the unintended consequence of weakening rather than strengthening existing multinational efforts to combat biological weapons. The chairman's draft in its entirety may be more far-reaching than necessary and could actually work against the protocol's attempt to enhance compliance.

The absence of compliance or verification measures in the original treaty was no accident. The drafters of the BWC recognized that the world was on the threshold of a biotechnological revolution. At that time, verification of the treaty was viewed as difficult if not impossible. Rather than committing to measures that might be irrelevant or counterproductive, such as prohibiting the retention of specific agents, the drafters deferred until technology or further study could offer some options. Their wisdom is remarkable in hindsight. The scope and pace of scientific developments with both beneficial as well as possibly nefarious uses are too numerous to consider, much less to catalog. Who would have envisioned, for example, the use of botulinum toxin, the most potent known natural toxin, as a therapeutic intervention for neuromuscular disorders?

Those who drafted the original treaty deliberately chose a cautious strategy. They resisted the natural tendency to do more, recognizing that it could have harmful consequences later. Their intention was for subsequent review conferences to consider advances in technology and initiate further study to identify possible compliance measures. After the first review conference in 1981, this incremental approach began in earnest, building eventually to the creation of the Ad Hoc Group, which was given a mandate to negotiate the protocol.

The negotiators of the Ad Hoc Group have had several encounters with the "devil in the details," and their troubles can be clearly seen in the chairman's text. For example, charged with sorting out the myriad of possible mandatory measures, the group had to determine what activities were a matter of BWC concern and, therefore, constituted a declarable activity or facility. Logic and logistics quickly limited the number and types of facilities to be declared. Unlike the real proliferation case of Iraq, universities, breweries, hospitals, and food processing plants were excluded from consideration—not because such facilities are incapable of producing pathogens for prohibited purposes but because there are just too many to consider as declarable facilities. Furthermore, cutoffs allow certain facilities with dual-use equipment, processes, and agents that could be used in biological weapons to escape declaration. It is not possible to declare everything that may be of concern. Although care was taken to avoid making loopholes, potential ones were nonetheless created. A clever proliferator could continue prohibited work without meeting the criteria that mandate declarations.

To the chairman's credit, the draft text's provisions for the investigation of facilities goes a long way toward redressing the current limitations of the BWC. Similarly, the inclusion of outbreaks of disease resulting from alleged use or accidents at prohibited facilities is a vital provision in any future protocol. Taking the process of initiating investigations out of the UN Security Council, which currently must resolve complaints about BWC compliance, is another substantive step forward to ensure that timely investigations can be conducted based on the merit of the concern without being subject to the veto of one member.

But the recent experience of UNSCOM suggests that even investigations will not be sufficient to insure compliance. After a resounding military defeat and the imposition of debilitating sanctions, Iraq withstood the scrutiny of four years of the most intrusive arms control inspections without divulging any of its offensive biowarfare capabilities. While UNSCOM challenge and routine inspections highlighted a number of serious ambiguities in Iraq's story, the truth still remains elusive despite implementation over a seven-year period of all 21 verification measures proposed for consideration in the protocol. Examining what worked and what did not work for UNSCOM under actual field conditions would seem to be invaluable. Committing to a protocol before seriously studying and learning from the UNSCOM experience would be not only a missed opportunity but also a mistake.

Investigations, even if not foolproof, may be valuable, but the utility of random transparency visits is another matter. Although transparency is a laudable objective, experience during trial visits conducted by the departments of Defense and Energy suggests that transparency visits might have unintended consequences, creating ambiguities and concerns rather than resolving them. Such visits are problematic because there is an inherent tension between displaying transparency and protecting legitimate intellectual, national security, and commercial proprietary information. The dual-use nature of the processes, equipment, and materials creates unavoidable ambiguities associated with both permitted and prohibited activities.

In one trial visit, a facility producing vaccines against pathogenic organisms was located in an old state police compound where there was also an explosives storage bunker. The proximity of these facilities to each other raised suspicions and required further detailed explanation and information. During the same visit, information concerning production techniques, capacities, and output was requested by the visitors but could not be provided because it was sensitive commercial proprietary and national security information. What became apparent was that visitors could have their suspicions raised not by one single ambiguity or non-disclosure but by the totality of ambiguities and non-disclosures. The chances of the problem arising increase when the target facilities are complex, multifunctional, and defense-related.

For visiting teams, the need "to acquire and retain a comprehensive and up-to-date understanding of the facilities and activities declared globally," as called for in the text, may put even prepared facilities in the untenable position of revealing sensitive information to avoid creating the perception of being less than transparent and risk a possible clarification or challenge investigation. It is this kind of scenario that worries the U.S. commercial pharmaceutical industry. While the draft text includes confidentiality provisions, it remains to be seen whether sensitive information shared with an international organization can truly be safeguarded.

The provisions in the chairman's text on technical exchange and cooperation present another potential problem with the draft protocol. The BWC mandates the facilitation of free trade and the fullest possible exchange of agents, equipment, and materials for peaceful purposes, and Article 14 of the chairman's text says each state- party to the protocol "shall not establish, maintain or take either individually or collectively any discriminatory measures…which would hamper the economic and technological development of States parties to the Convention…."

The danger of this language lies in how certain countries interpret it. Iran, for example, asserts that compliance with the draft protocol means eliminating export controls on all biological-related equipment. During the opening session of the latest Ad Hoc Group meeting, the head of the Iranian delegation stated, "It is essential to note that the BTWC explicitly has recognized the right of the states-parties to participate in the fullest possible exchange of equipment, materials, and scientific and technological information for biological agents and toxins for peaceful purposes. Therefore, implementation of this right shall be facilitated by other states-parties. Based on this right no state-party to the BTWC or the protocol has the right to deprive or hinder the other states-parties from the right to access." This interpretation suggests that unilateral or multilateral export controls outside the BWC should not be enforced against state-parties compliant with the terms of the treaty and protocol. Certain members of the Non-Aligned Movement have indicated that they plan to withhold support for this protocol until they secure agreement on this language for this stated purpose.

The United States and others supporting unilateral or Australia Group export controls are thus faced with a dilemma. As part of a holistic strategy against biological weapons, the United States and others seek to limit the proliferation of enabling technology to suspect countries while trying to strengthen the BWC. These efforts are reinforcing and complimentary. But the potential scenario created by the stance of countries like Iran could force a difficult choice between a protocol and export controls. It is possible that the protocol could be held hostage during the final negotiations and that its acceptance would require accepting the Article 14 provision as interpreted by states like Iran.

A disappointing element of the chairman's text is the lack of confidence-building measures. Article 15 mentions only two, national legislation and investigations of outbreaks of disease, and it leaves the investigation and reporting of such outbreaks to the discretion of individual states-parties. Mandating such action would be difficult, but more could be done through the protocol to enhance such efforts. Article 14 lists promoting voluntary global disease surveillance as one of 11 possible activities to support technical exchange and cooperation. The missed opportunity may be not putting enough priority and effort on a subject fundamental to the BWC's object and purpose. Vigorous support of states-parties reporting outbreaks of disease would enhance transparency and increase confidence. It is regrettable the chairman's text does not give that kind of priority to this subject.

The chairman's text has many appealing elements. It clearly addresses existing deficiencies in the current treaty and offers additional measures. Many would argue that, despite possible limitations and potential loopholes, a protocol with all these provisions is vital, given the trends in biological weapons proliferation. But, while strengthening the BWC may be a worthy objective, the United States must consider certain broader issues before committing to the protocol politically or legally.

Any protocol that undermines existing multilateral export control and facilitates a proliferator's acquisition of the means to conduct biological warfare should be resisted at all costs. The United States should also resist a protocol that provides legal or political cover to existing or would-be proliferators. Ideally, a future protocol should raise the political and legal risks and costs to countries that seek to acquire these weapons. But the assertion that a strengthened BWC is a deterrent to biological weapons proliferation is dubious. UNSCOM's experience in Iraq suggests that even intrusive real-time monitoring of a suspect facility may not be sufficient to deter a proliferator. The urgency, in light of recent proliferation trends, to adopt a protocol perceived as comprehensive should be tempered with the need to enact one that is viewed, above all, as effective.

The approach often quoted in medicine, primum non nocere or "first, do no harm," may be appropriate in considering the chairman's text. The original BWC drafters adhered to this principle by resisting the temptation to include compliance measures of uncertain value or with possible harmful consequences. Although the Ad Hoc Group's intent is to provide a comprehensive set of measures to strengthen the BWC, adopting more limited measures may be more prudent. There is no doubt that the current treaty lacks effective means to investigate issues of compliance and violations, and it is vital to pursue measures that first and foremost correct these shortfalls. Beyond that, the wisest course of action is less clear. Some of the measures outlined in the chairman's text may have the opposite of their intended effect, and a review of the text therefore evokes another Latin phrase: caveat emptor.

Colonel Robert P. Kadlec (USAF), a physician, currently serves as professor of military strategy and operations at the National War College. He previously served in the Office of the Secretary of Defense for Policy as the secretary's representative to the BWC in Geneva and as an UNSCOM inspector in Iraq.