Russia’s apoplexy over biological research – Implications for the BTWC and its Articles V and VI

[Cross-posted from The Trench]

Since the summer, Russia has been adding chapters to the history of the Biological and Toxin Weapons Convention (BTWC) with its allegations of treaty violations against Ukraine and the USA. So far, it has culminated in convening a Formal Consultative Committee (FCM) under BTWC Article V in September and filing an Article VI complaint accompanied by a draft resolution proposing an investigative commission with the United Nations Security Council (UNSC) in October. The FCM was inconclusive because states parties reached no consensus on whether Moscow’s allegations have merit. Notwithstanding, a large majority of participating states rejected the accusations in their national statements. On 2 November, the draft resolution failed to garner sufficient votes.

Notwithstanding, both outcomes will impact the BTWC. The Ninth Review Conference will start in two weeks (28 November – 16 December). In their review of the articles, state parties will have to acknowledge the invocation of Articles V and VI. In the latter case, it was the first time in the BTWC’s 47 years. Finding consensus language reflecting the demarche may be problematic and could contribute to the review conference’s failure. In a statement after the UNSC vote on the draft resolution, the Russian delegate vowed that his country ‘will continue to further act within the framework of the [BTWC] and make the efforts needed to establish all of the facts having to do with the violations by the United States and Ukraine of their obligations under the Convention in the context of the activities of biological laboratories on the territory of Ukraine’.

At the same time, how Russia triggered Article VI and sought to establish an investigative committee and define its modalities elicited responses from UNSC members. These positions will likely influence discussions during and after the review conference whenever questions arise about the UNSC mandate and procedures in case of an Article VI complaint.

Getting to the UNSC

For years now, Russia has been complaining about US-funded biological research in former Soviet states. Russia’s campaign accusing Ukraine and the USA of running biological weapon (BW) activities in violation of the BTWC became more forceful in the months before it invaded Ukraine and an international issue afterwards. Having scurried through Ukrainian laboratories in occupied territory searching for incriminating evidence, Moscow compiled a dossier with documents and held press conferences to voice its allegations. It also convened three UNSC meetings in March and May. In this respect, it is interesting to note that Russia – a permanent member of the UNSC – buttresses its accusations with explicit references to so-called ‘evidence’ collected after occupying parts of Ukraine in blatant violation of the UN Charter. More specifically, Article 2(4) obliges UN members to ‘refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations’. In other words, by its admission, the evidence only became ‘available’ to Russia as a consequence of a significant crime against international law.

(Russian briefing on alleged Ukrainian BW activities)

Over the summer, Russia shifted into higher gear when it called for an FCM under BTWC Article V. This gathering ended without consensus on whether Russia’s claims were valid. However, an overwhelming majority of participating states rejected them as being meritless.

Dissatisfied again, Russia raised the matter once more before the First Committee of the UN General Assembly in October. It announced its preparation of a formal complaint under BTWC Article VI and an accompanying draft resolution to set up an investigative commission comprising all UNSC members. It lodged its complaint with the UNSC on 24 October.

Like at each of the previous UN meetings, the UN Office for Disarmament Affairs (UNODA) categorically stated that it had no evidence whatsoever that Ukraine was conducting biological research and development activities in violation of the BTWC. Moscow, however, dismissed those statements, arguing that UNODA based itself on Ukraine’s confidence-building declarations but is unable to verify their accuracy. In his right of reply towards the end of the UNSC meeting of 27 October, Russia’s Permanent Representative Vassily Nebenzia mocked UNODA’s capacity to collect relevant information.

Russia’s approach to triggering Article VI for the BTWC

On 24 October, Nebenzia addressed a letter to the President of the UNSC. It summarises Moscow’s grievances against Ukraine and the USA, reiterates outstanding questions after the FCM, and lodges a formal complaint with the UNSC under Article VI. The letter also has two annexes. The first one comprises lists of questions addressed to Ukraine and the USA and links to the working papers presented by Russia at the FCM. (The Russian letter of 24 October, which the UNSC president circulated in its original form – i.e. without a UNSC reference number – the next day, comprised 309 pages and included all the materials presented at press conferences and previous UNSC sessions.) The second one contains a draft resolution proposing the establishment of a commission consisting of all UNSC members to investigate its claims against Ukraine and the USA. As Nebenzia made clear during his statement to the UNSC on 27 October,

We also expect that the commission will present a relevant report on the issue containing recommendations to the Council no later than 30 November and inform the [BTWC] States parties of the results of the investigation at the Ninth Review Conference, to be held in Geneva from 28 November to 16 December.

Article VI (1) grants BTWC states parties the right to take a complaint to the UNSC. In terms of procedure, it only states that the complaint ‘should include all possible evidence confirming its validity’ and a ‘request for its consideration’ by the UNSC. The provision lacks guidance on the type of investigation the UNSC may initiate, and states parties have never elaborated investigation modalities. In the words of Director and Deputy to the High Representative for Disarmament Affairs Adedeji Ebo on 27 October:

The Convention does not provide any guidance on the type of investigation that the Council may initiate. States parties have also not developed any specific guidance or procedures concerning the modalities to be employed for the purposes of an article VI investigation. Should the Council initiate an investigation, the United Nations Office for Disarmament Affairs stands ready to support it.

Put differently, a process to develop both mandate and procedures would have to precede a UNSC investigation in response to Russia’s complaint.

Neither the treaty text nor the common understandings reached at review conferences grant a complainant a right to propose the investigation’s mandate, the investigative team’s composition, and the time frame within which the team should report back. Russia thus not only triggered Article VI but also introduced a concurrent draft resolution determining the make-up of the investigative commission (experts from the current UNSC members, thus including Russia and the USA but excluding Ukraine) and setting a deadline for the investigative report (30 November 2022).

Did the UNSC veto the Russian draft resolution or not?

When put to the vote on 2 November, the UNSC did not adopt Russia’s draft resolution. The abstentions by all ten non-permanent members surprised: countries with outspoken views against Russia’s allegations, those that sought to balance their position with other geopolitical or economic interests, or the ones wishing to avoid setting precedents for Article VI in the absence of a majority behind Moscow’s proposal all adopted a common strategy. By denying the possibility of nine affirmative votes (as required by Article 27 of the UN Charter), they ensured rejection of the draft resolution irrespective of the permanent members’ actions. The five permanent members split, with China and Russia endorsing the proposal and France, the UK and USA rejecting it. The table below summarises the action by UNSC members (the linked document also contains each country’s justification of its vote).

Votes in the UNSC on the Russian draft resolution
Russian FederationUnited KingdomBrazil
 United StatesGabon
  United Arab Emirates

Despite three permanent members’ rejecting the Russian draft resolution, their vote did not amount to a veto. This result suggests that the UNSC addressed a procedural matter rather than any ‘other matter’ (as stipulated in Article 27(3) of the UN Charter). The difference between both is that a procedural matter only needs nine affirmative votes, whereas any non-procedural matter requires nine affirmative votes, including the permanent members’ concurring votes. A procedural matter may pass despite a negative vote by one or more permanent members; a negative vote by a permanent member would defeat any ‘other matter’ of substance.

It is challenging to distinguish when the UNSC votes on a procedural or non-procedural matter because ‘most votes in the Council do not indicate by themselves whether the Council considers the matter voted upon as procedural or non-procedural’. However, the difference does become visible afterwards. The phrasing of the UNSC President’s statement of failure reveals the absence of vetoes in procedural matters:

  • In a procedural matter, the announcement will include the phrase ‘… has not been adopted, having failed to obtain the required number of votes’.
  • In all other matters, the standard phrase will be ‘… has not been adopted, owing to the negative vote of a permanent member of the Council’.

Thus the President (Ghana) announced the outcome as follows, thereby indicating that the vote was procedural:

The draft resolution received 2 votes in favour, 3 against and 10 abstentions.
The draft resolution has not been adopted, having failed to obtain the required number of votes.

We should add that had the UNSC adopted the Russian draft, the procedural nature of the vote would not have been outwardly apparent because the President would not have explained the result.

Consequences of the vote on the draft resolution

From the preceding, there is a clear need to distinguish between the formal complaint under Article VI and the accompanying draft resolution. With the latter, Russia used its position as a permanent UNSC member to undertake an action that is not available to any ‘ordinary’ BTWC state party (not seated in the UNSC). Earlier, we noted that Article VI(1) requires a state party to accompany the complaint with all relevant evidentiary materials and a request for the complaint’s consideration by the UNSC. Russia, however, phrased the request part differently (emphasis added):

In accordance with article VI of the Convention, the Russian Federation lodges to the Security Council a formal complaint, which includes all possible evidence confirming its validity, and reiterates its request to convene on 27 October 2022, in New York, a United Nations Security Council meeting to consider the attached draft resolution of the Council (see annex II).

UNSC session

Russia did not call for the UNSC’s consideration of the formal complaint. Instead, it requested a meeting to adopt the draft resolution. Given that the draft resolution called for establishing an investigative commission and designation of the current UNSC members as commission members, the proposal was a typical case for a procedural rather than substantive vote. In other words, the UNSC did not take up the matter of substance, namely the Article VI complaint. Had this been the case, France, the UK and USA would most likely have heard their opposition described as a ‘negative vote’.

Responses to the Russian complaint

The UNSC met twice after Russia had sent its letter invoking BTWC Article VI to the President on 27 October and 2 November. UNODA only spoke in the October meeting, reiterating that it had no information on illicit BW-related activities in Ukraine supported by the USA. In both instances, Russia was the first member to address the UNSC, during which it summarised its core allegations and the steps it had undertaken leading up to the triggering of the BTWC complaints procedure. It also presented the draft resolution on both occasions. In his statement on 27 October, Nebenzia introduced an element not featured in the letter to the President or the accompanying draft resolution. No Russian official seems to have repeated it since.

We have submitted a draft resolution to the Security Council. In accordance with article VI of the [BTWC], the draft is aimed at establishing and dispatching a Security Council commission to investigate into the claims against the United States and Ukraine […]

The reference to ‘dispatching’ is the only hint at onsite visits, possibly at an expert level in Ukraine. This activity would have raised the question of access to Ukrainian territory, especially those regions occupied by Russian forces. Without authorisation from Kyiv, a UN-mandated team cannot enter the Ukrainian territory as defined by its internationally recognised borders. (In March 1988, UN investigators could not travel to Halabja after Iraq’s chemical attacks against the city despite Iran’s control over large swaths of Iraqi Kurdistan.) An onsite visit to laboratories would also have raised serious issues about the forensic value of evidence collected in occupied Ukraine.

The draft resolution immediately became the subject of discussions at the expert level. An unofficial account has suggested that several UNSC members raised concerns about the investigative commission, mainly because of the absence of modalities for an Article VI complaint. While those countries did not reject the idea of an investigation outright, they were concerned that adopting the resolution would have precedent-setting implications for future UNSC-mandated investigations under Article VI. They, therefore, suggested that the draft text should include a precise mandate, structure and modalities for the commission. Russia reportedly did not consider the suggestion, maybe because its negotiation would considerably delay the resolution vote, making the finalisation of the investigative report before the end of November or the Ninth Review Conference mid-December all but impossible. Moscow’s apparent intransigence may have played a role in the non-permanent members’ abstention.

Three other principal factors may have also influenced their stance. First, UNODA’s repeated statements before the UNSC since March that it is not aware of any BW programmes in Ukraine, as alleged by Moscow, held strong sway over the representatives. The Russian delegation consequently faced a high barrier to arguing its allegations’ validity convincingly. In addition to the progressive loss of diplomatic clout over the war in Ukraine, the outcome of the FCM a mere two months before the UNSC vote added to Russia’s challenges of persuading the meeting. The outright, systematic refusal to accept any of the explanations offered by Ukraine and the USA also raised issues about Moscow’s motives behind the allegations.

Second, several UNSC members prized the quality of evidential materials. While Article VI(1) conditions UNSC action on a complaint including ‘all possible evidence confirming its validity’, states parties have never precised the nature of such proof. After their vote, several non-permanent members clarified that a complainant should not simply recycle evidence if it failed to convince the membership of another formal consultative body considering its allegations. Moscow had not only presented its accusations three times before to the UNSC, but it also called for an FCM during which it raised numerous questions and to which Ukraine and the USA answered in detail. While the substantive nature of the discussion in the FCM – in Nebenzia’s words – ‘confirm[s] the relevance of the problem that we raised’, the fact of the matter is that the gathering ended without a unanimous view. Consensus among nations when considering an international dispute sets an impossibly high bar. Still, in this instance, Russia only managed to convince a tiny coterie of satellite or aligned states of its case. In other words, if a BTWC state party triggers Article VI after unsuccessfully invoking Article V, UNSC members have now declared their expectation of substantial additional evidence before deciding on follow-on action.

Third, the USA especially argued that much of the assistance offered to Ukraine falls under BTWC Article X on assistance and cooperation on non-prohibited and other peaceful activities. Several countries belonging to the Global South voiced their concern that the accusations and proposed investigation without a proper mandate or procedures might delegitimise Article X projects.

Interventions by France, the UK and USA on 27 October and 2 November did not engage Russia on the substance of its allegations or merits of an investigative commission. Instead, they decried Russia’s political motives behind its manoeuvres, suggesting in passing that the country would never under any circumstances accept an evidence-based explanation of the biological research activities. In their mind, this also renders moot the idea of an investigative commission because Moscow would reject any finding that does not match its desired truth.

China finally voted in favour of the Russian draft resolution. It justified its stance by arguing that ‘the series of questions raised by Russia at the meeting were not fully answered’ during the FCM and therefore thought that Russia’s complaint to the UNSC and request to initiate an investigation were ‘reasonable and legitimate and should not be blocked’. It concluded ‘that a fair and transparent investigation by the Council can effectively address compliance concerns and help uphold the authority and effectiveness of the Convention’.

Despite its sustained declaratory support for President Vladimir Putin concerning Russia’s military operations in Syria and Ukraine, China is not Russia’s ally. Instead, it has interests that may be aligned with Moscow’s, particularly when countering Western and US influence in geopolitical and economic spheres. Reducing transparency about certain activities inside China, including ones that are subject to international oversight or verification (e.g. in terms of disarmament and arms control or incident notification), seems one part of the way Beijing presently aims to project itself on the world scene. Reading its statements on 27 October and 2 November carefully, it never endorsed Russia’s claims but couched its arguments to let procedures foreseen in the BTWC run their course. If adopted, Russia’s precedent-setting draft resolution would have given China a permanent place in the proposed investigative commission and hence a role in any investigation, including those called against it. The manner in which Beijing delayed investigations into the origins of the COVID-19 pandemic by the World Health Organisation, despite its reporting obligations under the International Health Regulations, blocked off access to the Wuhan Institute of Virology, or influenced report writing may be instructive in this respect.

In conclusion

Three issues stand out after the convening of the FCM and Russia’s invocation of Article VI, which BTWC states parties will have to consider during the forthcoming review conference:

First, in BTWC’s lifespan, Article V was invoked only twice: in 1997, after Cuba’s allegations that the USA had deliberately spread Thrips palmi insects over the island and last summer concerning Russia’s allegations of illicit biological research activities in Ukraine funded and controlled by the USA. In both instances, the FCM did not resolve the controversies for lack of consensus among the participating BTWC state parties.

This difficulty in reaching a consensus points to a fundamental flaw in the FCM design. As long as the accuser and the accused play their part in consensus building, the mechanism cannot arrive at a clear determination, one way or the other.

However, it is also an illusion that the Article V process might function effectively by excluding the adversary parties. To this end, BTWC states parties should be able to agree on a (reinforced) qualified majority vote and (ideally) inscribe in the procedure the expectation of state parties to accept the outcome of the vote.

After all, the outcome of such a vote is a collective judgement based on individual opinions by participating state parties, not a statement of fact. The truth is always political, not (necessarily) scientific. Russia, Iran and China have shown this principle time and time again by rejecting the scientific findings of the investigative teams of the Organisation for the Prohibition of Chemical Weapons (OPCW) in Syria and accusing other members of politicising the OPCW’s work.

Second, Article VI has now been triggered for the first time. As the first paragraph stipulates: ‘Such a complaint should include all possible evidence confirming its validity, as well as a request for its consideration by the Security Council’. In this instance, Russia did not just file a complaint with the UNSC; it also used its status as a permanent member to simultaneously submit a draft resolution aiming to set up an investigative commission. The document also proposed specific modalities for that investigation, which BTWC states parties had not previously considered or agreed to.

As we noted earlier, the convention lacks a detailed procedure to trigger the provision. Because of the vote in the UNSC, proposals to enhance Article VI may now have to address whether a permanent member of the UNSC can submit a resolution proposal accompanying a complaint. In addition, they also have to determine whether a request to act on a concurrent draft resolution amounts to the request to have the complaint considered by the UNSC as explicitly stipulated in Article VI. The issue holds the potential of a consensus breaker at the review conference.

Finally, Russia resubmitted its previously circulated documentation whose value UNODA questioned four times (twice in March, May and October) when stating to the UNSC that it is unaware of the alleged BW programmes in Ukraine.

However one may interpret its outcome, the FCM did not conclude there were indications of a BTWC violation. Based on the national statements during the FCM, it is clear that an overwhelming majority of participating state parties did not accept Russia’s assertions. The question, therefore, arises whether Russia did not brutalise Article VI by submitting documents in evidence that the international community had already repeatedly judged as wanting.

State parties should stipulate that recirculated evidence cannot support an Article VI complaint if other formal consultative bodies have previously found such documentation inconclusive, deficient or insufficient.

To summarise, a sustained disinformation campaign highlights the BTWC’s weaknesses regarding verification and compliance. Article V may have some relevancy in conflict mitigation but cannot resolve allegations of breaches of the treaty unless the process is modified because of the experiences in 1997 and 2022. Russia’s invocation of Article VI using its position as a permanent member of the UNSC leads the BTWC into uncharted waters.


No humanitarian justification for biological weapons

[Cross-posted from The Trench]

On 11 January Digital Journal, an online publication touching upon current events and with a penchant for science and technology affairs, published an Op-Ed by Megan Hamilton, an animal and nature-loving journalist based in Costa Rica, on Technology and the art of modern warfare. The piece is worrying enough for all the new technologies under consideration: fast-firing guns that could be deployed on satellites, direction-changing bullets, laser guns to knock out enemy drones, and so on.

The item that caught my attention was a discussion about a project once run by US Defense Advanced Research Projects Agency (DARPA) that turned insects into surveillance cyborgs (See also the Gizmodo blog). As Hamilton described it:

How? Through the HI-MEMS, or Hybrid Insect Micro-Electrical-Mechanical System concept. Electrical circuits are implanted in bugs while they are in the pupa stage. Once they become adults, signals sent through radio waves trigger the circuits, meaning that the insect is now remote-controlled. Surveillance equipment is attached, meaning these bugs are now invaluable and undetectable tools for battlefield exploration.


Insect cyborg (Source: Gizmodo, Australia)

DARPA cancelled the project. Hamilton, however, explored the topic of entomological warfare further with Jeffrey Lockwood, author of Six-Legged Soldiers: Using Insects as Weapons of War (Oxford University Press, 2010). It reveals interesting insights. For instance, technology has not yet been able to develop a drone the size of an insect—an entomopter—because of the size needed for an on-board energy source.

Once past the technological fascination of this type of weapon design for warfare or intelligence gathering, Hamilton pressed Lockwood on the morality of such projects and human and animal rights. Here things do get hairy.

Morality of entomological warfare

Lockwood took a kind of long-winded approach to answering the question. First, he mentioned the standards set by ‘just war theory’. Under jus in bello one imagines that formally prohibited weapons would be banned in warfare. He is generally correct when positing:

And then, deploying a weapon system of creatures to inflict harm on other humans surely constitutes a form of biological warfare (although international law is surprisingly vague on insects—microbes are quite another matter).

But then he wondered if biological warfare is necessarily wrong. He referred to the scenario of a debilitating but not deadly disease being transmitted by mosquitoes to enemy combatants such that it weakens the opposing forces and the goal of the attack can be achieved with considerably less loss of human life than would be the case with conventional weapons. He continued:

Of course, this supposes that one has adopted a consequentialist (probably utilitarian) ethics in which all that matters is the outcome. Such an ethical system might well conflict with the decisions made using a deontological approach in which duties/rights provide the moral constraints (rather than outcomes). So to return to your question, we might violate the rights of humans or other creatures (most often thought to be sentient which then raises the questions of whether insects can suffer—I think so, but many would disagree) by using the entomological weapons even if these arms reduced human deaths relative to other tactics.

[I assume that the passages between parentheses in the above quotes are Hamilton’s asides.]

The interview passage mixes up a few aspects of constraining biological warfare, namely the use of pathogens as a method of warfare, the deployment of insect vectors to propagate the disease agent, and the resort to insects in combat.

Yes, biological warfare is necessarily wrong

On the first issue whether all biological warfare is necessarily wrong, the answer is an unambiguous ‘yes’. The 1972 Biological and Toxin Weapons Convention (BTWC) contains no criteria of lethality or incapacitation to prohibit the development, production, stockpiling or any other form of acquiring microbial or other biological agents. This ban is absolute and therefore accepts no exceptions. Indeed, according to Article I, para. 1 of the BTWC the retention of disease agents is only justified for prophylactic, protective or other peaceful purposes. And then only if the nature or volume of the agent in possession conforms to those purposes.

This principle is known as the General Purpose Criterion. It emerged during technical discussions in the late 1920s and early 1930s in preparation of the disarmament conference due to start in 1933 as a way to address the dual-use problem, capture future scientific discoveries and technological developments, and frame a definition of chemical and biological weapons that does not allow for any exception. A criterion such as lethality was explicitly rejected, because the then proposed definition for chemical weapons had to capture irritants and incapacitants, such as riot control agents. Both the BTWC and the 1993 Chemical Weapons Convention have the General Purpose Criterion at the heart of their respective prohibitions.

While it is true that the BTWC does not explicitly refer to the use of biological weapons, it makes explicit reference to the 1925 Geneva Protocol banning the use of both chemical and biological modes of warfare. Moreover, at the Fourth Review Conference in 1996, the states parties to the BTWC explicitly recorded their understanding that the comprehensive prohibition on biological weapons in Article I covers their use too.

So, yes, all biological warfare is necessarily wrong, even if certain modes of pathogen use may appear more humane on the surface.

Yes, the BTWC bans the use of insects to spread disease

The second issue raised in the interview concerns the use of insects. In the past, insects have been both considered and used as vectors to spread disease. For instance, during the Second World War Japan notoriously deployed infected fleas to provoke plague epidemics in China. Allied Powers too investigated the option.

Again the BTWC’s prohibition is explicit. Article I, para. 2 proscribes the development, acquisition by any means and possession of weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict.

So, yes, developing, cultivating or possessing insect vectors with the intent of having them deliver a pathogen is proscribed. No exceptions allowed.

In my opinion, although I am not aware of any legal expert ever having made that point explicitly, the use of insects with the intent to have them sting or bite humans or animals would also be prohibited under the BTWC as the insects would almost invariable inject some kind of poison—a toxin—into the victim.

But does the BTWC ban the use of insects?

The third question whether the use of insects in more generic ways is a proscribed mode of warfare is more ambiguous. The BTWC does not mention insects per se. Biological agents cover human, animal and plant diseases. Certain insects attack plants and may destroy agricultural crops. Again, in the past belligerents have not shied away from deploying them to harm the enemy in both open and covert warfare operations. Psychologically, agricultural warfare lies close to biological warfare. Thus, for example, Protocol III (and Annexes) on the Control of Armaments of 23 October 1954 to the Treaty of Economic, Social, and Cultural Collaboration and Collective Self-defence (also known as the Brussels Treaty) of 17 March 1948 defined biological weapons as follows [emphases added]:

(a) A biological weapon is defined as any equipment or apparatus expressly designed to use, for military purposes, harmful insects or other living or dead organisms, or their toxic products.

(b) […], insects, organisms and their toxic products of such nature and in such amounts as to make them capable of being used in the equipment or apparatus referred to in (a) shall be deemed to be included in this definition.

(c) Such equipment or apparatus and such quantities of the insects, organisms and their toxic products as are referred to in paragraphs (a) and (b) which do not exceed peaceful civilian requirements shall be deemed to be excluded from the definition of biological weapons.

The protocols to the Brussels Treaty allowed Germany and Italy to join the Western European Union, which in turn paved the way to their NATO membership.

Would the states parties to the BTWC consider an allegation of insect use as a possible violation of the convention? Actually, yes. They did so in 1997.

As I summarised developments in the 1998 and 1999 editions of the Yearbook published by the Stockholm International Peace Research Institute (SIPRI), on 30 June 1997 Cuba submitted a request to Russia, one of the three co-depositories of the BTWC, to convene a formal consultative meeting to investigate an alleged US attack with BW agents in October 1996.

That was the first time since the entry into force of the BTWC in 1975 that a state party formally requested the international community to investigate a breach of the convention. Cuba did not lodge a complaint with the UN Security Council under Article VI of the BTWC but invoked a procedure to strengthen the implementation of Article V adopted by the Third Review Conference of the BTWC in 1991. According to this procedure, the formal consultative meeting must be preceded by bilateral or other consultations among the states involved in the dispute. Following the submission of the request, the depositories of the BTWC must convene the formal consultative meeting within 60 days of the receipt of the request.

According to the allegation, a US anti-narcotics fumigation plane flying from Florida to Grand Cayman crossed Cuba with Cuban authorization on 21 October 1996 and was observed by a Cuban civilian aircraft to spray unknown substances intermittently. On 18 December the first signs of a plague with Thrips palmi karay, a minute insect belonging to the order of Thysanoptera which are plant eaters and may transmit virus diseases of plants, appeared. While Thysanoptera live wherever plants are, Cuba stated that this particular insect was indigenous to Asia and exotic to Cuban territory, although since 1985 its presence has been noted on several Caribbean islands. By January 1997 other parts of Cuba had also been affected and the insects continued to spread throughout the island in the spring and affected many crops. In October, the Cuban government reported that 20,000 tonnes of produce, including 18,000 tonnes of potatoes, had been lost to Thrips.

Following a request in December 1996 to clarify the incident, the US stated on 12 February 1997 that the pilot had noted the Cuban civilian aircraft but was unsure whether he had been seen and therefore used the smoke generator of his aircraft to secure a positive visual contact ‘following prudent and safe aviation procedures’. The US further added that the tanks for the aerosol sprinkling system had actually been used to carry fuel in view of the long-distance flight. On 28 April, in a note to the UN Secretary-General, Cuba formally accused the United States of biological warfare. The US State Department rejected the Cuban accusations and made its own version of events public on 6 May. Cuban officials discarded the statement for its ‘lack of seriousness’. In a second letter dated 27 June to the UN Secretary-General Cuba formally rejected the US explanations: (a) the regulations of the International Civil Aviation Organization do not mention the use of smoke generators to signal the position of aircraft in flight and such use is not a known practice except for aerobatics; (b) crop duster planes manufactured and operated all over the world are not equipped with smoke generators; and (c) the plane had no requirement to carry extra fuel in the herbicide tank since its normal fuel load sufficed amply for the flight. Even if some extra fuel had been carried in the tank, then it was technically feasible to fill it with another substance too, allowing for initial consumption of fuel and then for spraying.

The formal consultative meeting began in Geneva on 25 August in closed session, but failed to resolve Cuba’s claim after three days of talks, because, according to the chair, British Ambassador Ian Soutar, ‘it was not possible to draw a direct causal link’ between the overflight and the outbreak. As the Thrips palmi occurs in Haiti, the Dominican Republic, Jamaica and in Florida, the main unresolved question is whether the insect could have been introduced to the Cuba in another way. The meeting mandated Ambassador Soutar to further investigate the allegation and prepare a report by 31 December 1997.

His report, delivered on 15 December 1997, concluded that ‘due inter alia to the technical complexity of the subject and to passage of time, it has not proved possible to reach a definitive conclusion with regard to the concerns raised by the Government of Cuba’.  Twelve states parties to the BTWC had submitted comments, which were annexed to the report. All agreed that insufficient evidence was available to establish a causal link between the outbreak of Thrips palmi in Cuba in December 1996 and the overflight of the US plane two months earlier. The report noted that throughout the process general agreement existed that the requirements of Article V of the BTWC and the consultative process established by the 3rd Review Conference had ‘been fulfilled in an impartial and transparent manner’.

The interesting thing is that while the BTWC states parties decided to take up the Cuban allegation of entomological warfare, in their conclusions they carefully avoided naming the incident a case of biological warfare. As Nicholas Sims of the London School of Economics and Political Science noted in his SIPRI book The Evolution of Biological Disarmament (Oxford University Press, 2001),

Denmark and the Netherlands expressed doubt, which other parties are known to have shared, over the question of whether insects or other pests such as Thrips palmi fall within the scope of the BTWC. Both states included statements that their participation in the consultative process was without prejudice to their national positions on this question.

Cuba, having raised the matter under the BTWC, made it politically difficult for the United States to invoke a legalistic argument to avoid addressing the concern. The documents of the consultative meetings have not been published—Sims does quote some extracts from them—and there is no indication that the incident was precedent-setting in the minds of the states that participated in the exercise.

So to answer the question whether the BTWC bans the use of insects other than for the delivery of a pathogen or toxin, one can only note equivocalness: not prima facie, but in practice some scope may exist to lodge a complaint about malicious use of insect vectors against agriculture with one of the three BTWC depositary states.


To come back to the Jeffrey Lockwood’s suggestion that not all biological warfare may necessarily be wrong, my answer is unequivocally: WRONG!

International law, in the form of the BTWC, allows no exceptions on the use of pathogens or toxins as weapons of war. There have been and still are important reasons why lethality or other humanitarian considerations were discarded as criteria for defining biological and toxin weapons. Any suggestion to the contrary might open up a loopholes that proponents of so-called non-lethal warfare would be all to happy to exploit today and tomorrow.

Talking disarmament for the Middle East

Last month Noha Tarek from Egypt commented on my reflection that neither members of the Non-Aligned Movement (NAM), with the exception of India, nor Arab League members have contributed financially or in kind to the elimination of Syria’s chemical weapons (CW). Syria participates in both groupings. She linked disarmament elements to a host of intra-regional and external politics and considered the relationship between Syria’s (read: Arab) CW and Israel’s nuclear arsenal.

It has taken me a while to reply. I could have easily registered my disagreement with several elements, but that does not open new perspectives for disarmament in the Middle East. Moreover, any ‘correctness’ of a viewpoint would depend entirely on whether Noha and I share a common taxonomy of issue interrelatedness, which we do not. On the contrary, I am absolutely convinced that the public discourse on disarmament in the region must change if any progress is to be made. By governments, to make negotiated solutions acceptable to their respective citizens. By the public to allow politicians and diplomats the space to back out of entrenched positions held for so many decades. Security, of course, remains paramount. However, it can be organised differently. Disarmament is after all the continuation of security policies by alternative means.

Can we move beyond the endless, anaemic exercises to describe every conceivable obstacle in their minutest detail? Is it possible for issue experts from international civil society to design from a purely technical viewpoint some first practical steps to offer substance to the disarmament debate ? This blog posting sketches a few possibilities. I am far from certain that I have the right answers (or even the right analysis for that matter), but the thoughts can hopefully foster a problem-solving discourse.

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Syria and Biological Weapons? And Cluster Munitions?


Joby Warrick has a story in today’s Washington Post about emerging concerns that Syria has, and might use, biological weapons. The article states:

Syria’s bioweapons program, which U.S. officials believe has been largely dormant since the 1980s, is likely to possess the key ingredients for a weapon, including a collection of lethal bacteria and viruses as well as the modern equipment needed to covert them into deadly powders and aerosols, according to U.S. and Middle Eastern officials and weapons experts.

This latent capability has begun to worry some of Syria’s neighbors, especially after allegations that the regime of President Bashar al-Assad used internationally banned chemical weapons against civilians in an Aug. 21 attack.

Top intelligence officials in two Middle East countries said they have examined the potential for bioweapons use by Syria, perhaps as retaliation for Western military strikes on Damascus. Although dwarfed by the country’s larger and better-known chemical weapons program, Syria’s bioweapons capability could offer the Assad regime a way to retaliate because the weapons are designed to spread easily and leave few clues about their origins, the officials said.

The story is definitely worth a read, but I am not going to guess what people might read into it.

Very briefly, as for the applicable treaty law on biological weapons, Syria is a party to the Geneva Protocol of 1925 but is not a party to the Biological Weapons Convention. As with chemical weapons, most international lawyers hold that customary international law bans the use of biological weapons in any form of armed conflict. As a member of the UN, Syria is subject to relevant Security Council decisions on biological weapons, such as Resolution 1540 on preventing non-state actors from obtaining WMD material.


Rick Gladstone in the New York Times reports on allegations that the Syrian military has used cluster munitions:

In the shadow of a confrontation over whether Syria’s government had attacked civilians with internationally banned chemical munitions, a rights group reported Wednesday that Syrian armed forces had repeatedly used cluster bombs, another widely prohibited weapon, in the country’s civil war.

The group, Human Rights Watch, said in a report on cluster bomb use that it had documented dozens of locations in Syria where cluster bombs had been fired over the past year.

Cluster bombs are munitions that may be fired from artillery or rocket systems or dropped from aircraft. They are designed to explode in the air over their target and disperse hundreds of tiny bomblets over an area the size of a football field. Each bomblet detonates on impact, spraying shrapnel in all directions and killing, maiming and destroying indiscriminately.

The Human Rights Watch report mentioned can be found here. Syria is not a state party to the Convention on Cluster Munitions.

It’s Baaack! The Biosecurity Controversy Over “Gain-of-Function” Research on Influenza Viruses Returns

On August 7th, a group of influenza scientists published online a letter in Nature in and Science in which they proposed conducting “gain-of-function” (GOF) research on the avian influenza A (H7N9) virus. GOF research is sometimes discussed as “dual use research of concern,” or DURC. I have posted on Arms Control Law, and published elsewhere, on developments in the biosecurity and public health controversy over GOF research on the highly pathogenic avian influenza A (H5N1) virus by Dutch researchers, led by Ron Fouchier from the Erasmus Medical Center, and American scientists, led by Yoshihiro Kawaoka from the University of Wisconsin-Madison. The announcement of the proposed GOF experiments on the H7N9 virus has brought the controversy back into the spotlight.

To recap, “gain-of-function” research involves scientific experiments that alter pathogens in ways that give them features or functions not presently found in the wild. In the H5N1 GOF research that sparked the worldwide controversy from late 2011 until early 2013, researchers manipulated the H5N1 virus so that it achieved transmissibility between mammals–a capability the virus had not readily demonstrated in nature. Generally speaking, an objective of GOF research on influenza viruses is to provide an earlier understanding of how the viruses might mutate in the wild and cause human pandemics, potentially giving scientists and public health experts more time to develop potential responses, such as alerting surveillance systems and preparing vaccine strategies.

Critics of the H5N1 GOF research worried about a number of problems, including whether (1) biosafety conditions in laboratories would be adequate to prevent accidents that could cause outbreaks, and (2) such experiments could threaten biosecurity by providing states, terrorists, or criminals with “blueprints” for making biological weapons. The controversy led to delayed publication of the H5N1 GOF research results, a voluntary moratorium on GOF research, and the development by the U.S. government of new, stricter rules and oversight processes for GOF research it funds.

Similar to the GOF H5N1 experiments, the proposed H7N9 GOF research includes, among other things, experiments “[t]o assess the pandemic potential of circulating [H7N9] strains and perform transmission studies to identify mutations and gene combinations that confer enhanced transmissibility in mammalian models (such as ferrets and guinea pigs).” Global health concerns about the H7N9 virus arose in spring 2013 when a worrying number of cases of humans infected by contact with birds occurred in China. As of early July, the mortality rate among humans infected with H7N9 was approximately 33%, making the virus a killer pathogen. To date, the H7N9 virus has not demonstrated serious human-to-human transmission, but the fear is that it might mutate and spread more readily in human populations. The proposed GOF experiments on the H7N9 virus are intended to give scientists and public health officials possible insights into how the virus might change into something more fearsome–and, thus, give them more time to prepare.

Critical reactions to the proposed H7N9 GOF research indicated that the biosecurity and public health controversy over GOF experiments has not subsided. A flavor of the criticism can be found in this story from Science:

“The scientific justification presented for doing this work is very flimsy, to put it mildly, and the claims that it will lead to anything useful are lightweight,” says Adel A. F. Mahmoud, an infectious disease specialist at Princeton University and the former president of Merck Vaccines. And the security precautions are “insufficient and amazingly lame,” says molecular biologist Richard Ebright of Rutgers University in Piscataway, New Jersey.

And from this story in The Scientist:

Simon Wain-Hobson, a virologist from the Pasteur Institute in France, was critical of the move. “Since when do scientists try to get manifestos into Nature and Science?” he asked. “If they were going to do the human genome or go after the Higgs boson, I could understand that, but this is extraordinarily focused. They are ramming gain-of-function experiments down our throats against debate, and it’s not scientific.”
. . .
Michael Osterholm, director of the Center for Infectious Disease Research and Policy (CIDRAP) at the University of Minnesota and a vocal critic of last year’s decision to publish the H5N1 research, added that the flu community still has not rigorously weighed the risks and benefits of gain-of-function studies. “I support doing them for basic research purposes, and I have always maintained that Yoshi [Kawaoka] and Ron [Fouchier] could do this work safely,” he said. “But my concern is that publishing their data would allow labs around the world, which won’t adhere to the same safety requirements, to do the same.”

Osterholm added that the signatories of today’s letter have overstated the benefits of gain-of-function research, including the potential for developing better vaccines and antiviral drugs, or improving surveillance measures. “We still do H5N1 surveillance in the same way a year later,” he said.

In terms of arms control and non-proliferation, the GOF controversy includes arguments about the BWC’s (ir)relevance to the challenge of balancing public health and biosecurity in scientific research. The BWC review conference in December 2011 occurred when the H5N1 GOF controversy was in full swing, but the BWC states parties did not address it in any serious way , despite much rhetoric about the BWC being a central forum for discussing biosecurity issues beyond the traditional focus on non-proliferation of biological weapons by states. The reticence of BWC states parties to address this controversy connected to a larger governance problem that emerged from the H5N1 GOF research episode–the inadequacy, or lack of, adequate national and international rules and processes to deal effectively with the pros and cons of GOF research.

The scientists proposing the H7N9 GOF research are seeking U.S. government funding, so the proposal will be subject to the heightened U.S. rules and procedures adopted after the H5N1 controversy. The H7N9 GOF experiments, if approved and funded by the U.S. government, will go forward under these rules. How the U.S. government handles these proposals under its new approach will be closely watched by the biosecurity, public health, and scientific communities around the world.