Harvard Sussex Program
on chemical and biological warfare armament and arms limitation

The HSP Draft Convention

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A proposal for prohibiting biological and other such armament under international criminal law

This initiative originates in HSP research begun during the mid-1990s to examine the possible contributions that international criminal law might make to strengthening the regime against CBW. From this emerged the idea of creating a new international treaty, alongside the Biological Weapons Convention of 1972 (the BWC) and Chemical Weapons Convention of 1993 (the CWC), building on existing legal precedents and international agreements, that would confer on national courts jurisdiction over individuals present in their national territory, regardless of their nationality or official position, who order, direct, or knowingly render substantial assistance to the use of biological or chemical weapons anywhere. Encouraged by expressions of interest from a number of European governments, we are now moving the idea through the relevant academic and legal communities into the domain of public policy making. The background to our proposal is as follows:


Any development, production, acquisition or use of biological or chemical weapons is the result of decisions and actions of individual persons, whether they are government officials, commercial suppliers, weapons experts or terrorists. The international conventions that prohibit these weapons, the BWC and the CWC, however, are directed primarily to the actions of states, and address the matter of individual responsibility to only a limited degree.

Article 4 of the BWC and Article 7 of the CWC require each state party to prohibit activities on its territory that are prohibited to a state party. The CWC explicitly requires each state party to enact penal legislation to this effect, applicable also to activities of its own nationals anywhere.

Nevertheless, the BWC and the CWC stop short of requiring a state party to establish criminal jurisdiction applicable to foreign nationals on its territory who commit biological or chemical weapons offences elsewhere -- and neither convention contains provisions dealing with extradition.

These deficiencies are not remedied by the provisions applicable to biological and chemical weapons in the Convention for the Suppression of Terrorist Bombings, opened for signature in January 1998, or in the Rome Statute of the International Criminal Court, which entered into force on 1 July 2002. The Bombing Convention does not apply to the activities of military forces in the exercise of their official duties or to internal state acts -- such as the use of CBW weapons by a leader against a population within his own state. Nor does the scope of either of these agreements extend beyond the actual use of CBW weapons to include, as do the BWC and the CWC, their development, production, acquisition and stockpiling.

National criminal legislation, so far enacted by only a minority of states, is no substitute for international criminalization. Purely national statutes present daunting problems of harmonizing their various provisions regarding the definition of crimes, rights of the accused, dispute resolution, judicial assistance and other important matters. Neither do national criminal statutes convey the universal condemnation implicit in international criminal law. Moreover, the national legislation of a state would generally have no applicability in the case of a non-citizen present in that state who has, for example, ordered or knowingly rendered substantial support to the use of biological weapons elsewhere.

What is needed is a new treaty, one that defines specific acts involving biological or chemical weapons as international crimes, like aircraft hijacking or torture. Treaties defining international crimes are based on the concept that certain crimes are particularly dangerous or abhorrent to all and that all states therefore have the right and the responsibility to combat them. Certainly in this category, threatening to the community of nations and to present and future generations, are crimes involving the hostile use of disease or poison and the hostile exploitation of biotechnology.