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This normative prohibition against bioweapons has since become
more profoundly entrenched. Proclamations by a few developing States
during the 1980s of a “right” to bioweapons “ the poor nation™s nuclear
weapons2 “ have long ceased in the face of United Nations resolutions that
condemn biological and other weapons of mass destruction. Most legal
experts agree that the BWC™s normative prohibition against bioweapons
extends to all States, a position long avowed by the United States.3
Unfortunately, the BWC has been politically scorned and abused to a
degree that is striking even in an environment that is pervasively disparag-
ing of multilateral commitments. (Box 8“1 explores the BWC Protocol and
the Fifth Review Conference debacle.) Today, in the broad scope of bio-
violence prevention, the BWC has been relegated to the status of an in¬rm
elderly relative worthy of affection and respect yet not really expected to
provide meaningful answers to current challenges. As a broad signal of its
strategic insigni¬cance, the BWC Sixth Review Conference in December
2006 (the once-every-¬ve-year event that is the centerpiece of efforts to
sustain the treaty) generated negligible attention.4 Its principal outcomes
were to establish a three-person Implementation Support Unit and to out-
line a work program for one-week meetings for 2007 through 2010.5
International diplomacy™s persistent efforts to erode the BWC imperil
the foundation of nonproliferation. Reforms that could strengthen the
treaty regime are being forsaken. The larger issue, however, is how to inte-
grate that regime into a broad network of global norms and rules. Indeed,
nonproliferation is not an isolated pursuit but is instead a reinforcing ¬ber
in an intricate policy tapestry for preventing bioviolence. To that end, four
sets of policies are recommended.
First, there is a deep structural con¬‚ict in the BWC™s prohibition of
bioweapons: the de¬nition of “bioweapon” is increasingly unclear due to
the onslaught of scienti¬c advance. A process should be established for
continuously delineating the category of prohibited bioweapons.
Second, national biodefense programs, purportedly to promote biovi-
olence resistance measures (discussed in Chapter 6), are undermining
States™ mutual con¬dence that is essential to international nonprolifer-
ation. A process should be established that can continuously distinguish
legal biodefense programs from illegal bio-offensive programs.
194 BIOVIOLENCE: PREVENTING BIOLOGICAL TERROR AND CRIME


BOX 8-1. TH E BWC PROTOCOL AN D TH E FI FTH REVI EW CON FERENCE
DEBACLE

In the early 1990s, the BWC™s weaknesses were exposed by the Soviet and Iraqi
bioweapons programs. An Ad Hoc Group, led by Hungarian Ambassador Tibor Toth,
was tasked to draft a new Protocol with effective veri¬cation measures for reinforcing
the BWC. It faced complicated hurdles:
r Could a veri¬cation system produce useful information about the countless and
exponentially increasing civilian biofacilities where weapons preparations could
easily be disguised or erased?
r Would an intrusive inspections system endanger scienti¬c and pharmaceutical
intellectual property?
r Should a veri¬cation system address the proliferation of scienti¬c knowledge and
genetic engineering techniques that are rapidly changing the landscape of what
must be veri¬ed? and
r Most contentious, how could a system to verify States™ compliance help
detect emerging bioweapons threats from non-State violators who do not join
treaties?

The Ad Hoc Group worked for ten years to produce the BWC Protocol, which called
for: States to declare their biodefense programs and other bioresearch and commer-
cial pharmaceutical facilities; site-check visits to encourage honest declarations; and
challenge inspections to investigate alleged noncompliance. Its completion in early
2001 anticipated the BWC Fifth Review Conference later that year and coincided with
President Bush™s inauguration that brought to U.S. policy a far more distrustful view
of international commitments.
Experts of widely disparate political perspectives argued that the Protocol would
not likely detect the few States or terrorists that might want to make or use biolog-
ical weapons. It was no surprise when U.S. negotiator Donald Mahley announced
the U.S. rejection of the Protocol saying that it would “misdirect world attention into
non-productive channels” and “will not enhance our con¬dence in compliance and
will do little to deter those countries seeking to develop biological weapons, [and]
would put national security and con¬dential business information at risk.”a The inter-
national community fumed and sputtered; years of negotiations had passed without
strengthening the BWC. Moreover, the United States did not present a rich array of
substitute ideas, and offered embarrassingly shallow alternatives.
Yet, no one was prepared for the eruption that ended the Fifth Review Conference,
perhaps the most dramatic debacle in arms control history. The central issue, as it
evolved over the three-week conference, was how to continue efforts to strengthen
the treaty. Some diplomats wanted yearly meetings to address particular issues,
but the United States disagreed. At the second week™s end, agreement was in doubt.
The third and ¬nal week was devoted to assessing proposals and preparing a ¬nal
consensus statement. By diplomatic custom, no new proposals were welcome during
the ¬nal week.
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INTERNATIONAL NONPROLIFERATION



On the ¬nal Friday at 4:30 p.m. moments before the conference was to conclude,
Under Secretary of State John Bolton, who had arrived only the night before, unex-
pectedly proposed to terminate the Ad Hoc Group. Thus, in a tense conference that
had focused for weeks on how to advance the BWC process despite the Protocol™s
initial rejection, the United States at the very last minute proposed disbanding the
only extant forum for considering progressive measures.
A standard of civility in diplomatic meetings often covers even the most heated
disagreements. However, when Under Secretary of State Bolton proposed disbanding
the Ad Hoc Group “ effectively abandoning efforts to strengthen the BWC “ the
room erupted. Profanity was hurled at U.S. diplomats. In the ensuing chaos, diplomats
retreated to meet in their regional groupings (the standard organizing scheme for UN
conferences). The entire Western Group, including all its European allies, boycotted
the U.S. delegation. After ninety discordant minutes, the States Parties agreed to the
unprecedented tactic of suspending the Review Conference for a year.
The Conference™s resumption in 2002 adopted a plan for yearly experts™ meetings
to consider: national legislation to implement treaty obligations; biosecurity measures
for protecting pathogens; response measures for disease outbreaks, natural or man-
made; and a bioscience code of conduct. These meetings did not produce profound
reform proposals for the 2006 Sixth Review Conference.
a Donald Mahley, Special Negotiator for Chemical and Biological Arms Control, Head of the U.S.
AHG Delegation, Statement at the Hearing on The Biological Weapons Convention Protocol:
Status and Implications, The House Government Reform Committee, Subcommittee on National
Security, Veterans Affairs, and International Relations (June 5, 2001), quoted in Nicole Deller
& John Burroughs, Arms Control Abandoned: The Case of Biological Weapons, WORLD POLICY
INSTITUTE WORLD POLICY JOURNAL (June 22, 2003).



Third, the stockpiled remnants of State bioweapons programs, notably
those of the former Soviet Union, pose a unique bioviolence threat.
Although a few nations are trying to dismantle that threat, the interna-
tional community has not been explicitly engaged. This is a role that the
BWC should undertake.
Fourth, various issues that have perpetually encumbered the BWC
should be sheared away; they divert attention and provoke diplomatic
wranglings that ensnare opportunities for real progress. The BWC is an
inappropriate context for resolving these issues; they should be addressed
outside the treaty in connection with larger undertakings.

DEFINING BIOLOGICAL WEAPONS

Deep within the BWC is uncertainty about what the treaty prohibits: what
exactly is or is not a bioweapon. This uncertainty was intended to provide
¬‚exibility so that, as bioweapons evolve, the prohibition would continue
196 BIOVIOLENCE: PREVENTING BIOLOGICAL TERROR AND CRIME

to be vital regardless of any speci¬c pathogen or method of dissemination.
However, in the prevention context, ¬‚exibility equates to ambiguity which
equates to dysfunctionality.


The General Purpose Criterion
BWC Article I prohibits States “in any circumstances to develop, produce,
stockpile, or otherwise acquire or retain: Microbial or other biological
agents, or toxins whatever their origin or method of production, of types
and in quantities that have no justi¬cation for prophylactic, protective,
or other peaceful purposes.”6 In other words, all bioscience and related
activities are disallowed unless justified. The meaning of “prophylactic,
protective, or other peaceful purposes” turns on a State™s intentions. Pos-
session of bioagents is prohibited if the possessor intends to use them as
weapons. After an attack, the user™s intent would be clear from the fact
that bioweapons were used. But retrospective characterization is mean-
ingless from a prevention standpoint. Malevolent preparations must be
identi¬able prior to hostile use.
Sometimes, determining “intent” is easy. For example, assembly or
loading of a warhead or other mass dissemination device with lethal bioa-
gents is prohibited. However, these clear situations do not de¬ne criteria
that satisfactorily characterize the myriad commercial, law enforcement,
or military applications of bioagents. The gray areas are rapidly expanding
as progressing bioscience blurs any functional distinction between manip-
ulating pathogens for legitimate research or for creating a lethal weapon.
Moreover, a potential weaponeer no longer needs to produce a lot of agent
for loading into warheads. A weapon could now be milligrams of a highly
contagious agent in a test tube. Of course, that bioagent could be the basis
of an experiment that will lead to life-saving discoveries.
It is unsatisfactory to say that whether the test tube is a prohibited
weapon depends on a scientist™s intentions. If law enforcers discover a
scientist with a test tube, should he be arrested or commended for his
research? In Chapter 5, a regulatory scheme was described that distin-
guished legal from illegal possession of bioagents on the basis of whether
the scientist has a proper license. If not, his activities are illegal; if so, his
activities are presumably legal. Extending this answer to States, however,
ignores that a State could license the scientists who are helping it to pursue
prohibited bioweapons.
Moreover, new bioagents are constantly being discovered and engi-
neered. There is no “list” or “schedule” that could permanently distinguish
197
INTERNATIONAL NONPROLIFERATION

among the ever lengthening number of pathogens. It is important, there-
fore, to design a process that sustains a capability over time for distinguish-
ing justi¬able from unjusti¬able items. Critically, for purposes of prevent-
ing bioviolence, the distinction between an illegal bioweapon and a legal
bioagent must be objective, that is, based on the item™s characteristics
rather than who possesses it and what their intentions are. An immediate
priority for that process would be to address the escalating category of
so-called nonlethal bioagents.


“Nonlethal” Bioagents
One of the greatest challenges facing the BWC has to do with so-called
nonlethal bioagents (NLBAs). The moniker is misleading. Some bioagents
(e.g., anticrop pathogens) can unquestionably be weapons even if they
do not cause human fatalities. Other agents that typically do not cause
fatalities might do so under particular conditions. An agent that would
merely disable or temporarily incapacitate one person might kill someone
else. Many observers regard the term nonlethal as an oxymoron, referring
instead to sublethal, less lethal, less than lethal, or disabling. The Interna-
tional Committee of the Red Cross (ICRC) disfavors the term ˜nonlethal.™
With regard to ˜incapacitants,™ a category of nonlethal chemicals, the ICRC
states (unhelpfully) “While the ICRC does not claim that all incapacitants
are problematic, we ¬rmly believe that the absolute prohibition in warfare
of all forms of chemical and biological agents is of crucial importance and
must be maintained.”7
The U.S. Department of Defense Joint Nonlethal Directorate (JNLWD)
de¬nes nonlethal weapons as “explicitly designed and primarily employed
so as to incapacitate personnel or material, while minimizing fatalities,
permanent injury to personnel, and undesired damage to property and
the environment.”8 Nonlethal weapons are intended to have reversible
effects on personnel or material.9 Unlike conventional lethal weapons that
destroy their targets principally through blast, penetration, and fragmenta-
tion, nonlethal weapons employ means other than gross physical destruc-
tion to prevent a target from functioning. The term typically excludes ways
of disrupting an enemy™s capabilities without impeding troops or impair-
ing material, for example information warfare.10

Arguments For and Against Nonlethal Bioagents
Regardless of terminology, the problem is how to de¬ne the scope of the
prohibition against bioweapons. Antagonists to NLBAs argue that the BWC
198 BIOVIOLENCE: PREVENTING BIOLOGICAL TERROR AND CRIME

admits of no exception that would permit NLBAs nor are there exclusions
in the BWC for riot control or for other law enforcement purposes.

Nor does it appear that any “nonlethal” intent behind the use of biologi-
cal agents that degrade mat´ riel changes the analysis. The United States™
e
implementing legislation for the BWC clearly places use of biological agents
for deterioration of food, water, equipment, supplies, or any kind of mate-
rial within the prohibition contained in the BWC.11

To allow NLBAs, the argument continues, would poke a hole through
the normative ban against bioweapons, a hole so gaping that it would swal-
low the prohibition. Preservation and strengthening of norms against these
types of weapons is the only way to stop militarists from self-justifying
whatever weaponry they ¬nd potentially useful. The fact that technology
is opening new possibilities reinforces the need to prohibit any military
application of a bioagent. Antagonists argue the problem of the slippery
slope: if any step is taken down the path of permitting hostile applications
of bioagents, there will be no logical basis for stopping the cascade to full
and unfettered development of bioweapons. To ensure observance of the
norm against bioweapons, the entire category must be banned.
The counter-argument is couched in humanitarian terms. Modern
technology enables development of weapons that can cause far less harm
than guns and explosives. If a treaty prohibits the use of newer, less lethal
weapons, then older and more lethal weapons will be used. Military leaders
are, of course, tasked to use force. International law requires they accom-
plish their missions without causing unnecessary suffering or noncombat-
ant casualties.12 NLBAs are far less damaging than the weapons for which
they would substitute and therefore are more consistent with international
humanitarian law.13 It is more humane to incapacitate the enemy than to
kill him.

Another advantage of NLWs [nonlethal weapons] is that they provide a
military commander a way to take action when the use of lethal weapons
would violate rules of engagement. NLWs create less material damage and
are thus less provocative than conventional munitions. . . . Additionally,
NLWs allow commanders to take the political and moral high ground in
circumventing the strategy of terrorists. An added advantage is that they
may replace lethal weapons, such as land mines, that are condemned
by the international community because of their potential to cause, long
after a con¬‚ict, damage to the environment and death or injury to people.
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INTERNATIONAL NONPROLIFERATION

Nonlethal weapons may well serve the intended function of such muni-
tions without their long-term negative impacts.14

Notably, noncombatant casualties have risen as a percentage of total
casualties in armed con¬‚ict as increasing numbers of refugees, immi-
grants, and civilians are caught in the cross¬re of civil and ethnic strife.15
Military forces are often given missions other than large-scale, force-on-
force combat. If troops are performing humanitarian tasks (e.g., distribut-

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