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.

cybug1

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.

Conclusion

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.

Read the rest of this entry »


Syria and Biological Weapons? And Cluster Munitions?

SYRIA AND BIOLOGICAL WEAPONS?

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.

SYRIA AND CLUSTER MUNITIONS?

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.