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

The regime against CBW

The work of HSP has long focused on the formation and proper functioning of what may be thought of as an international regime to eliminate chemical/biological warfare and its weapons: a regime building up and strengthening the long-standing taboo against chemical/biological warfare that is reflected its general vilification and codified in international law: a regime that both complements and consolidates that wider array of anti-CBW countermeasures developed by CBW defence scientists and operated by military, police and other forces or services.

The core of the regime thus envisaged is a construct of international law which, through explicit rules, gives expression to an international norm of behaviour, in this case the norm that eschews CBW. A developed regime will also incorporate internationally agreed procedures for implementing its rules, such as procedures for monitoring compliance or even for agreeing sanctions against transgressors. Only in still-developing form does such a regime yet exist for the suppression of CBW and CBW employment. Its five main features are as follows

First, there is the 1925 Geneva Protocol, which is an international treaty whose states parties have agreed among themselves not to use CBW weapons against one another. This prohibition, building upon earlier agreements, such as those of The Hague in 1899 and 1907, is now generally considered to have entered customary international law, thereby becoming binding upon all states whether they have or have not formally joined the treaty.

Second, there is the 1972 Biological Weapons Convention (BWC), which is an international declaration now subscribed to by a large majority of states renouncing germ weapons in order to "exclude completely" the possibility of such weapons being used against human beings, other animals or plants. This international treaty, reflecting the post-WW2 renunciation of biological weapons by the defeated Axis powers, as in the 1954 Revised Brussels Treaty, was founded upon unilateral renunciations of biological and then toxin weapons which the United States through President Nixon announced during 1969-70. The 1972 Convention extended the existing regime of CBW no-first-use established by the Geneva Protocol (and its antecedents) by explicitly outlawing development, production and stockpiling of biological and toxin weapons. The Geneva-Protocol regime thereby extended is still a primitive one, for the 1972 Convention makes essentially no provision for any particular procedures or forms of international co÷peration or organization to implement its rules, or to enforce its norm of non-possession. At the time, this was judged to be acceptable -- for quite different reasons, it would now appear -- by the United States and the Soviet Union, who were the co-chairs of the multilateral conference that negotiated the Convention. Not all the negotiating partners agreed. France and China remained outside the treaty until 1984. Opportunity for building upon the treaty would, however, recur during the review conferences for which the Convention provided. These opportunities were indeed taken, with the institution of a variety of voluntary "confidence-building measures". But subsequently confirmed reports of gross violation of the BWC by the USSR promoted belief that such measures could never in themselves be sufficient. This led, in 1995, to the opening of negotiations for an agreement among the states parties on a legally binding instrument that would strengthen the treaty by establishing verification or other compliance-promoting procedures. These negotiations collapsed in 2001 at the Fifth Review Conference. In their place, the so-called BWC New or Intersessional Process ran during 2003-2005 and following assessment during the Sixth Review Conference in 2006 was renewed for 2007-2010.

Third, there are the particular provisions of the 1977 EnMod Convention -- the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques -- which prohibit warfare with antiplant chemicals "having widespread, long-lasting or severe effects". This treaty entered into force in 1978, but is at present subscribed to by less than a majority of the world's states. Among the permanent members of the UN Security Council, only France is a non-party.

Fourth is the empowerment of the Secretary-General of the United Nations to investigate allegations of the use of CBW weapons. The absence of international machinery for investigating reports of germ warfare, especially those heard during the Korean War, was what first precipitated intergovernmental attention to CBW during the early years of the East-West Cold War. What the machinery might comprise again became prominent in international fora during the late 1970s, when bizarre reports of CBW - "yellow rain" -- began to emanate from Laos and neighbouring regions, causing the administration of President Carter in the United States to seek the assistance of the international scientific community in an effort to clarify the reports. The UN General Assembly did the same in response to more vigorous public diplomacy by the administration of President Reagan shortly afterwards. Several UN investigations of alleged use of CBW weapons were mounted during the 1980s and early 1990s, initially, and inconclusively, in regard to the "yellow rain", and then during the Iran-Iraq war, when the Secretary-General conclusively verified Iraqi resort to mustard gas, and later in Mozambique and Azerbaijan, where his investigators reported non-verification of the alleged chemical-warfare episodes on which evidence had been presented. A key element in the empowerment of the Secretary-General was the conference of January 1989 convened in Paris by the government of France, during which 149 states formally reaffirmed their commitment to the 1925 Geneva Protocol.

Finally there is the 1993 Chemical Weapons Convention, which entered into force in April 1997. This, like the 1972 biological treaty, originated in intergovernmental talks on CBW that commenced in 1968. It is a full-blown disarmament cum antiproliferation treaty directed against all weapons which rely for their effects upon the toxicity of chemicals towards human beings or other animals. It prohibits development, production and stockpiling of any such weapons, or assistance in acquiring them, and obliges parties to the treaty not only to institute domestic compliance-assuring measures, including penal legislation, but also to participate in a verification system operated by an international agency based in The Hague, the Organization for the Prohibition of Chemical Weapons (OPCW). The treaty further extends the 1925 Geneva Protocol by including among its provisions an express prohibition of any use of toxic chemical weapons, including retaliatory use. The large majority of the world's states have joined the treaty, with the exception of some of the small island states, North Korea, and several of the states in the Arab-Israeli confrontation. Experience gained from negotiation of the 1993 Convention, and now from its implementation, inevitably influences efforts to strengthen the Biological Weapons Convention. Some see the 1993 Convention, especially its features of nondiscriminacy, penetration of private industry, and intrusive international verification, as the makings of an international regime for the control or suppression of all types of weapon of mass destruction, including nuclear weapons.

HSP work continues to be directed towards the implementation and enhancement of this regime. The current HSP initiative seeks to introduce a concept of individual responsibility into a regime in which the primary actors are otherwise states, not persons who can be held accountable. Individual responsibility does currently exist under the regime, but only to a very limited extent. The Statute of the International Criminal Tribunal for the Former Yugoslavia 1993 (as amended) confers on the Tribunal jurisdiction over the war crime of torture or inhuman treatment, including biological experiments. It also provides the Tribunal with, as a violation of the laws or customs of war, jurisdiction over the employment of poisonous weapons or other weapons calculated to cause unnecessary suffering. The Rome Statute of the International Criminal Court 1998 confers upon the International Criminal Court power to exercise jurisdiction over the war crimes of employing poison or poisoned weapons; and employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices. These provisions, however, are limited in their extent and do not provide authority to be used as a basis for prosecutions under national jurisdictions. Furthermore, they only relate to violations of humanitarian law, i.e. where perpetrated in the theatre of war of an international armed conflict. The idea in the HSP initiative is to extend international criminal law by means of a new multilateral treaty so that armament for chemical or biological warfare becomes an offence over which, as more states join the treaty, an increasingly universal jurisdiction is created. The extent of the offences under the proposed treaty mirror the obligations of states under the current CBW regime; e.g. possession and transfer of a chemical or biological weapon would entail individual criminal responsibility.