The Challenges Related to the Biological Weapons Convention
Biological weapons have remained a contentious issue since the last century with the advancement in biotechnology and biomedical engineering. A Biological weapon is a biological agent that is intentionally used to harm or kill humans, animals or plants. Epidemiologists estimate that a fast-moving airborne pathogen could kill more than 30 million people in less than a year. Genetic engineering and bioweapons are one of the fields where as exciting as the prospects may seem, the ramifications of such technology being used for military purposes are horrifying. The field has expanded into animals, medicine and agriculture. The Biological Weapons Convention and other legal frameworks are regulating and restricting the potential for these weapons to cause mass destruction.
This emerging issue needs a preventive approach. There is a need for International Humanitarian Law (IHL) to protect the interests of all the people in the world who are potential targets. This post shall go into the Biological Weapons Convention (BWC) and its issues. Firstly, it will highlight the existing seriousness of the use of biological weapons, then move onto the issues with the BWC and finally reach an appropriate conclusion.
The Legal Framework for Biological Weapons
The legal regime for biological weapons exists in the BWC and the Geneva Protocol, which bans the use of such weapons and creates prohibitions on activities such as stockpiling and creates a balance to allow the pursuit of scientific knowledge.
Customary International Law
The particular problem with this framework is that not all parties to the BWC are parties to the Geneva Protocol and this creates a problem of the applicability of the specific convention to the specific party ascribing to the law. Thankfully, customary international law helps because the prohibition on the use of biological weapons is affirmed by the ICRC Customary International Law Rules by Rule 73. The rule expands on state practice which has been ongoing since 1925 when the Geneva Protocol came into existence and this practice has evolved with the BWC and its widespread ratification. Customary international law is one of the safeguards that protect the international society.
The ICRC study also indicates that the practice contributing to the prohibition is not purely treaty-based and is very readily found in many countries military manuals. The prohibition on biological weapons is universal, irrespective of the type of armed conflict, and thus extends to both international armed conflicts and Non-International Armed Conflicts. Finally, the International Criminal Tribunal for the Former Yugoslavia has held that the prohibition under the Geneva Protocol is customary in nature.
The Seriousness of the Threat of Biological Weapons
The features of a biological weapon
Steve Bowman, in the Congressional Research Service Report, presented a list of the requirements of a viable biological weapon. These are:
Relatively small dose to infect
Capable of being widely dispersed
Survivable in storage and through dispersal
Insusceptible to conventional medical treatment
The short period between infection and symptom onset
Minimal contagiousness to avoid infecting one’s forces
Availability of protective measures for one’s own forces, if infected.
Illustrative examples of the effects of a biological weapon
A one-megaton nuclear bomb, the study found, might kill 90 per cent of unprotected people over an area of 300 square kilometer. A chemical weapon of 15 tons might kill 50 per cent of the people in a 60 square kilometer area. But a 10-ton biological weapon could kill 25 per cent of the people, and make 50 per cent ill, over an area of 100,000 square kilometer.
Another example is if a ballistic missile hits a city delivering 30 kilograms of anthrax spores in a unitary warhead against a city with no civil defense measure could result in lethal inhalation dosage levels over an area of roughly 5 to 25 square kilometers. With no treatment, most of the infected population would die within a week or two. For typical urban population densities, this could result in the deaths of tens of thousands or even hundreds of thousands of people.
The Problems with the Biological Weapons Convention
Lack of enforcement mechanism
The use of biological research gravely endangers life. Their issue arises from the very manufacture and research into them because they have applications that benefit scientific research and military purposes. The BWC bans microbial and toxin agents “of types and quantities that have no justification for prophylactic, protective, or other peaceful purposes.”
The BWC is a short framework, which does not address any mechanism for addressing the violations of the norms set out by it. The lack of an enforcement mechanism poses a serious threat to the international community. By means of using simple logic, even if there is a violation of the BWC or the Geneva Protocol, if there is nobody for oversight that can impose sanctions, there is no method for enforcement. Even though the United Nations Security Council can investigate complaints raised by the states, some argue it has either been ineffective or it has been a complete political non-starter i.e. the politics involved in the world doesn’t allow serious action to be taken.
Lack of information sharing
The convention fails to impose an obligation upon states to declare what types and amounts of agents or potential weapons they are researching or producing or have already produced. Consequentially, they are not obligated to declare which agents they have already mass-produced and stockpiled before the convention was signed and entered into force. The state parties are not obligated to share which agents are being produced in which laboratories, which could potentially be used to weaponize the biological agents.
Furthermore, this lack of information sharing creates an element of unpredictability and it is dangerous. A state can only defend itself if it knows an attack is coming but what if the state has no idea what it is being attacked with? What kind of agent it is, what are the possible remedies to the biological consequences and if they even possess the technology to prevent or mitigate the damage caused by the weapon?
The state parties, which wish to sign/ratify the convention, are not obliged to make the aforementioned declarations. The final nail in the coffin is that states even if they make a claim that they have destroyed such weapons, have no obligation to prove that they in fact did destroy them. Even if they still have illegal stockpiles, which are of small quantities, their potential for damage cannot be underestimated.
Finally, in reality, it is also difficult to gauge which state used what kind of weapon because the agents used are found in nature. Since nobody knows which state is in possession of which agent or is developing one or has stockpiled one, the question of accountability remains unresolved.
Possession of biological weapons with unstable entities
A biological weapon in the hands of a stable government is safer, compared to one in the hands of an unstable government like the Houthis in Yemen. However, the worst possible outcome is that of a non-state actor like Al-Qaeda in the Arabian Peninsula getting their hands on such weapons. Furthermore, this does not necessarily mean that the countries mentioned before possess or are creating such weapons. The examples are meant to indicate the massive potential of damage that can be caused when something like this happens to a stable government. After all, Yemen was relatively far much more stable in 2003 than what it is now.
To conclude, the biggest flaw in the BWC remains its reliance on the support of the state parties. While some have managed to render significant support such as the U.S.A., which complied to a great extent with the mandate of the BWC, but others like the Soviet Union in 1975 claimed that they had destroyed all stockpiles of such weapons which later one was discovered in 1981 to be untrue. There is a need for domestic ratification of the BWC and requires serious action. The lack of compliance is evident in the survey carried out by the Verification Research, Training and Information Centre in 2012 that demonstrates the abhorrently low compliance and implementation of the BWC domestically. The statistics demonstrate that National Implementation of the Convention is extremely low particularly in the area of criminalization and preventive measures. The United Nations Security Council (UNSC) has taken a step towards remedying these issues to a certain extent, but without having an amendment to the BWC or creating a new treaty to oversee enforcement, compliance is a distant dream.
The BWC provides for a review conference every 5 years and although the review conference came up with a final outcome document, it did not contain any substantive forward-looking measures in line with the outcome of the previous review conference. The meeting also failed to agree upon initiating any structural reforms that are needed to reinvigorate a long-stagnant bio-weapons regime. Consequently, against much hope for revival, the review conference only ended up enduring a status quo that threatens grave irrelevance for the bio-weapons convention. These conferences need to be stricter in terms of reaching a concrete solution to the problems of information sharing and enforcement, which have been elaborated before in this paper. Just because biological weapons have been sparingly used before does not mean that their looming threat should not be taken seriously.
 Steve Bowman, ‘Biological Weapons: A Primer,’ Congressional Research Service, Report RL31059. (2001), p. 2.
 Bill Gates, ‘Speech By Bill Gates – Munich Security Conference’ (Securityconference.de, 2017), https://www.securityconference.de/en/activities/munich-security-conference/msc-2017/speeches/speech-by-bill-gates/ accessed on 10 May 2017.
 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction 10 April 1972 in London, Moscow and Washington 26 March 1975 1015 UNTS 163.
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 J. Henckaerts & L. Doswald-Beck, Customary International Humanitarian Law, Volume: I Rules, ICRC, Cambridge University Press (2005), p. 256; D. Turns, ‘Weapons in the ICRC Study on Customary International Humanitarian Law’, Journal of Conflict and Security Law, Vol. 11, no. 2 (Summer 2006) p. 221.
 Henckaerts & L. Doswald-Beck, Customary International Humanitarian Law, Volume: 2 Practice Part 1 & 2, ICRC, Cambridge University Press (2005) §§ 76–241.
 Supra note 5 p. 257 [See, e.g., the military manuals of Australia, Belgium, Bosnia and Herzegovina, Cameroon, Canada, Colombia, Ecuador, France, Germany, Italy, Kenya, Netherlands, New Zealand, Nigeria, Russia, South Africa, Spain, Switzerland, United Kingdom, United States, and Yugoslavia.]
 Supra Note 5, ‘Customary International Humanitarian Law, Volume: 1 Rules’ at p. 257.
 Prosecutor v. Tadíc, Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction. No. IT-94-I-AR72, 2 October 1995. §§ 96-127.
 Supra note 1, Biological Weapons: A Primer, at p.3.
 Gert G. Harigel, ‘Introduction To Chemical And Biological Weapons’ (Carnegie Endowment for International Peace, 2017) http://carnegieendowment.org/2001/01/18/introduction-to-chemical-and-biological-weapons-pub-630 accessed on 9 May 2017.
 Steve Fetter, ‘Ballistic Missiles And Weapons Of Mass Destruction: What Is The Threat? What Should Be Done?’ (Journal of International Security, 2017) <https://muse.jhu.edu/article/447272/pdf> accessed 9 May 2017.
 Supra note 3, art. 1(1).
 Supra note 3, art. 6 (2).
 Jozef Golbat, ‘The Biological Weapons Convention – An Overview – ICRC’ (Icrc.org, 2017) https://www.icrc.org/eng/resources/documents/article/other/57jnpa.html accessed on 5 May 2017.
 ‘Report Of The Conference Of The Committee On Disarmament’ (UN Disarmament Library, 1976) https://disarmamentlibrary.un.org/UNODA/Library.nsf/9c58922852b2d6d88525757d004f36df/615e5634c7ce237e852576410052aecf/$FILE/A-10027.pdf accessed on 10 May 2017.
 ‘National Implementation Of The BWC’ (www.vertic.org, 2017) http://www.vertic.org/media/assets/Presentations/Statistics%20for%20side%20event_23mar12_final.pdf accessed on 10 May 2017.
 UNSC Res. 1540 (28 April 2004) UN Doc S/RES/2216.
 Supra note 4, Article XII.
 Kapil Patil, ‘The Eight Review Conference Of The Biological Weapons Convention: A Missed Opportunity | Institute For Defence Studies And Analyses’ (Idsa.in, 2017) http://www.idsa.in/cbwmagazine/eight-review-conference-biological-weapons-convention/kpatil accessed on 10 May 2017.
This article has been authored by Mr. Karan Dhall, Analyst, FMO – Dutch Entrepreneurial Development Bank, The Hague, Netherlands. This blog is a part of RSRR’s Excerpts from Experts Blog Series, initiated to bring forth discussion by experts on contemporary legal issues.