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ing meals and medical services), what should be done if local unrest pre-
vents them from accomplishing their assigned mission? It makes little
sense to use deadly force against the very people that military forces are
trying to aid. What should be done if a shot is ¬red? Use of indiscriminate
force is forbidden, but should soldiers be asked to stand by “while allowing
the perpetrators a safe haven to keep ¬ghting”?16 Nonlethal capabilities
may offer a way to limit friendly troops™ vulnerability more effectively than
is possible with lethal weapons.17 It is reasonable to ask: is the use of bioa-
gents in hostile contexts invariably more objectionable than bullets even
if using bioagents might in some contexts save lives? Box 8“2 discusses this
issue as it relates to Operation United Shield.
Antagonists of NLBAs respond that their availability might worsen war-
fare, not ameliorate it. The term deludes the public and politicians about
the horrible nature of all armed con¬‚ict and reinforces a government™s
claims for secret weapons development. Civilian leaders might order mili-
tary operations more blithely if they believe that nonlethal weapons enable
pursuit of a kinder, gentler warfare without unsettling displays of injured
victims that tend to undermine political resolve at home for military action
abroad.18 Thus, the concept of nonlethal weapons obscures the potential
lethality of the weapons themselves and misleads people about how the
military is actually thinking about the weapons. According to a United
States weapons expert:

Adoption of nonlethal technologies may create the risk that these non-
lethal weapons will proliferate to hostile States and terrorist organiza-
tions. Reliance on nonlethal technologies for strategic attack will generate
continuing research and re¬nement of existing concepts. As second- and
third-generation weapons are ¬elded, current generation nonlethal capa-
bilities will diffuse throughout the world and be targeted against U.S.
personnel and interests. Nonproliferation measures will be dif¬cult to
implement because the technologies and equipment are not unique to
nonlethal technologies. The real danger may be American vulnerabilities.


The ¬rst signi¬cant use of nonlethal weapons in modern military history arose in a
situation where U.S. forces could not adequately differentiate between threatening
and nonthreatening groups. In 1995, during Operation United Shield, the 13th Marine
Expeditionary Unit had to provide protection for the withdrawal of 2,500 UN peace-
keepers from Somalia. Lieutenant General Anthony C. Zinni included various nonlethal
weapons in the marines™ training and equipment arsenal including: sticky foam (used
to create temporary barriers); caltrops (sharp-edged pyramids for puncturing the tires
of vehicles following too closely); ¬‚ash-bang and stinger grenades; low-kinetic energy
bullets (¬ring beanbags and wooden plugs); laser dazzlers and target designators;
and chemical riot control agents. The mission had some success, due in part of the
effect of the unfamiliar weapons. Said Zinni, “I think the whole nature of warfare is

Quoted in David Koplow, Tangled up in Khaki and Blue: Lethal and Nonlethal Weapons in Recent
Confrontations, 36 GEO. J. INT™L L. 703, p. 727 (Spring 2005).

The U.S. reliance on advanced technology and sophisticated electronics
makes us more susceptible to a nonlethal attack by a variety of hostile

Types of NLBAs
Nonlethal bioweapons can be either anti-organism (personnel, animals,
or plants) or anti-material. Nonlethal anti-organism weapons are designed
to have temporary effects that dissipate over time or with relatively minor
treatment. Today, the nonlethal anti-organism weapons that raise the most
concern are chemical agents that affect cellular processes or neurotrans-
missions “ often termed biochemical weapons.20 Incapacitating chemicals
such as the fentanyl derivative used during the siege of a theatre in Moscow
in late 2002 fall into the category of toxic chemicals. However, due to
advances in biotechnology and new drug discoveries, the boundary dis-
tinguishing chemicals, ˜bioregulators,™ and ˜toxins™ is increasingly blurry.
In time, the debate over nonlethal chemical agents will likely spill over into
the bioweapons context.
More dif¬cult to characterize are anti-material weapons. Many micro-
organisms can degrade materials causing deterioration of food, wood,
stone, or conversion of organic waste into soil. Bioremediation refers to the
use of microbes to metabolize waste or environmental contaminants that
are otherwise dif¬cult to remove, for example, by releasing them to clean
up an oil spill. Indeed, thirty years ago, at the dawn of genetic engineering,

the ¬rst patent ever granted on a living organism was for a geneti-
cally engineered microbe that degrades oil.21 Now, hundreds of kinds of
hydrocarbon-eating bacteria are particularly interesting to industry.
Genetic engineering to manipulate processes of microbial degradation
could open new possibilities for bioagents that destroy materials. Genet-
ically engineered microbes can be envisioned to degrade petroleum sup-
plies, to corrode rubber tires and gaskets on vehicles, or to abrade moving
parts. Critics question the feasibility of these microbes as weapons (could
they work quickly enough to affect combat?), their controllability (might
they spread beyond the target area?), and their military value (if personnel
can get close enough to enemy forces to deploy these microbes, why not
just use explosives?). Yet, these questions do not answer whether research
should be permitted to develop speci¬cally targeted, faster-acting, more
predictable microbes.
It is not at all clear how to distinguish research for industrial pur-
poses from research for military purposes. The problem is that the same
research initiatives that could make many genetically altered microbial
agents (GAMAs) useful in bioremediation and other applications might
also enhance their weapons potential. In most research on organisms that
can be used as weapons, scienti¬c discoveries and facilities can be dual
purpose; any difference between a peaceful and hostile use is exclusively
a matter of intent.
A speci¬c problem concerns taggants: micro-organisms modi¬ed to
exhibit an unusual behavior (for example, “glowing” genes). A microbe
can be secretly placed on a building, vehicle, or other object of concern; its
unique signature can be remotely detected thereby enabling surveillance,
target identi¬cation, or precision destruction of the object.22 In more
advanced conceptions, taggant weapons could be engineered to destroy
upon command, for example, by triggering an inducible promoter sys-
tem (known as “terminator technology”) that stimulates production of a
corrosive agent.
Again, characterizing a microbe as a weapon or as an industrial tool is
simpler after it is put to use than while it is in a research laboratory. Thus,
if motivations are well understood, it is possible to distinguish organic
farmers™ dispersion of microbes on food crops from a State™s dispersion
of microbes to wipe out illegal drug crops; both actions might further
be distinguished from a military dispersion of microbes on an enemy™s
crops in order to undermine its war-¬ghting capability. However, because
the actual substance that is dispersed might be identical, it is impossi-
ble to distinguish these actions simply on that basis. From a prevention

perspective, if intentions are unknown, may the substance be stockpiled?
By similar logic, if a military is permitted to use microbes to clean up oil
spills and other hazardous waste releases but may not use the same sub-
stances against an adversary™s oil supplies, is it permitted to stockpile those
Most problematic here is the prospect, not far on the horizon, that bio-
microprocesses will drive information technologies (computer chips) and
manufacturing (nanotechnology).23 Is it realistic to tell the world™s mili-
taries that they may not take advantage of technologies that are widely
used in commercial sectors? Should preliminary research or assessments
of ef¬cacy be categorically banned? The “slippery slope” implications here
are enormous. If military use of any bioagent is permitted for war-¬ghting
purposes, how can the prohibition against weaponization “ the primary
bulwark against biowarfare “ be sustained? These questions cannot be sat-
isfactorily answered by reference to the BWC™s general purpose criterion.

U.S. Military Nonlethal Programs
It is impossible to know what nonlethal biocapabilities the U.S. military
is pursuing because, of course, such pursuits are highly classi¬ed.24 This
is part of the problem in and of itself. To understand why some bioagents
should be characterized as bioweapons, it is necessary to understand what
they are. So long as these agents are cloaked in secrecy, there is little way to
assess them. Moreover, secrecy spurs suspicion that the label “nonlethal”
is a deceptive cover for offensive bioweapons. It is unlikely that the U.S.
military would accept a North Korean claim that it is developing nonlethal
bioagents for use only in humanitarian applications without divulging
further information or allowing any international authority to investigate.
A substantial amount of the following information about U.S. mili-
tary NLBA programs comes from a single nongovernmental organization
(NGO), the Sunshine Project, based on released government documents.
Not surprisingly, neither it nor the U.S. military accord each other much
The U.S. government has been curious about GAMAs since the early
1990s when a military-funded program at Los Alamos Laboratory rec-
ognized the vast number of targets “ highways, metal equipment, vehi-
cles, fuel supplies, plastics, and body armor “ that are vulnerable to
biodegradation.25 By 2001, the U.S. Army™s patent 6,287,844 claimed “new
killing genes and improved strategies to control their expression” for the
purpose of “controlling genetically engineered organisms in the open
environment, and in particular, the containment of microorganisms that

degrade. . . .”26 Various facilities have been developed for GAMA research
and production including a signi¬cant testing and bioreactor (fermenter)
In 2002, one response to the 9/11 attacks was to form Scientists Help-
ing America, a cooperative effort among the Special Forces, the Defense
Advanced Research Projects Agency (DARPA), and the U.S. Naval Research
Laboratory (NRL) that asked American scientists to produce new mate-
rials and technologies including genetically engineered and material-
eating organisms for use in covert military operations.27 Notably, the Joint
Nonlethal Weapons Program (JNLWP) requested the Navy Judge Advocate
General™s approval of research on offensive uses of anti-material bioagents;
it was denied because it would violate the BWC.28
The NRL has a program “focused on identifying and characterizing
the degradative potential of products from naturally occurring micro-
organisms.”29 Without articulating any speci¬c threat, the Navy says it
must provide “novel defense measures” for U.S. troops. NRL has genet-
ically engineered natural organisms with “focused degradative capabili-
ties” for destroying plastics, notably polyurethane that is used as protec-
tive coatings on aircraft. One type of NRL microbe can “cause hundreds
of blisters on mil[itary] spec[i¬cation] polyurethane paints in 72 hours.”30
The NRL principal investigator described military applications for such
weapons: “It is quite possible that microbial derived or based esterases
might be used to strip signature control coatings from aircraft, thus facil-
itating detection and destruction of the aircraft.”31 Another NRL group
on bioremediation is developing delivery techniques that could be used
with such agents, including micro-encapsulation of bacteria. These sys-
tems have a unique advantage: because their effects closely mimic natu-
ral microbial processes, it would be easier to deny their use if that later
becomes an issue.32
The Army has worked on suicide gene systems speci¬cally tailored for
use in biodegradative microbes.33 The microbes die when the target sub-
stance is no longer nearby.34 The purported justi¬cation is to “prevent their
persistence in the environment beyond predetermined limits of space and
time,” although biosafety experts debate such reasoning.35 A more sinis-
ter justi¬cation is that this technology could help target offensive weapons
because it would prevent organism spread to unintended targets including
one™s own forces; organisms that survive longer could impede cleanup or,
worse, be put to use by the enemy.36
Perhaps most disquieting is the Department of Energy™s Microbial
Genome Program that focuses on genomics of classical bioweapons and

material-degrading organisms. The program™s goal is to create “super bugs”
to “uncover applications relevant to DOE missions”37 including bioreme-
diation and industrial processing as well as weapons design. The program
has sequenced more than twenty microbes that degrade metals, hydro-
carbons, cellulose, and industrial chemicals. At the Lawrence Livermore
National Laboratory in California, the Environmental Microbial Biotech-
nology Facility features a high-tech, industrial-sized production system for
biodegradative microbes.38 In addition, Oak Ridge National Laboratory in
Tennessee, working with the Center for Environmental Biotechnology of
the University of Tennessee, has conducted ¬eld tests of genetically engi-
neered bioremediation bacteria.39

Implications for the Biological Weapons Convention
The root difference between protagonists and antagonists of NLBAs is
over perceptions of the inevitability of strife. Underlying proponents™
arguments is a belief that warfare is an inherent human condition; we
should strive to reduce its casualties. Antagonists argue that an inter-
woven net of prohibitions against weapons development is necessary to
corral militarists™ capabilities and options. These positions are irreconcil-
Unfortunately, this long-running and intractable stalemate does not
help identify criteria of permissibility that could keep pace with advancing
bioscience. Indeed, it has led to the worst possible situation where national
militaries decide on their own, usually behind a veil of secrecy, which
agents are permissible and which are not. In this context, antagonists™
absolutist opposition to military use of any bioagent is a principled but
ultimately vain stance that bioscience will inevitably leave behind. The
cumulative effect of both sides™ arguments is to weigh down the already
weak BWC regime “ an outcome that is wholly unproductive.
It would be more helpful to consider what the process of making and
enforcing decisions about constantly changing technology should be. To
try to decide for all time which bioagents and which uses of those bioa-
gents might be prohibited is a counterproductive exercise that de¬es the
pace of change in bioscience. A process that establishes the same rules for
everyone and that compels translucency is preferable. So that legal rules
and norms can ful¬ll their purpose effectively, an authorized and capable
body should make decisions about their applications. Most important is to
shift the locus of decision making from national to international author-
ities and to promote outcomes that are common for all. That is, if using
bioagents to eradicate coca ¬elds is permissible for one State™s military,

it should be permissible for any State™s military. If one State may use tag-
gants, every State should be allowed. For activities that directly engage the
BWC prohibition against weaponization, the standards should be global
and the authority who decides where to draw the line should be interna-
tional. To promote consistency, conduct of bioresearch programs without
disclosure should be illegal “ as discussed in Chapter 6.


Nations will agree to forego military capabilities only if they can reasonably
trust that other nations are making a similar sacri¬ce. They will more likely
accept nonproliferation obligations if there are agreed methods to build
con¬dence that other States are in compliance. President Reagan famously
said of agreements to control weapons of mass destruction, “Trust, but
verify.” The BWC, however, in sharp contrast to comparable agreements
to control nuclear or chemical weapons, has no mechanism to verify State
compliance. Cheaters retain maximum technological ¬‚exibility and polit-
ical deniability. States that want to covertly produce bioweapons face little


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