[Cross-posted from The Trench]
Origins and negotiation of Article VII of the Biological and Toxin Weapons Convention
A new research report
Article VII of the Biological and Toxin Weapons Convention (BTWC) belongs to the more obscure provisions. It reads as follows:
Each State Party to this Convention undertakes to provide or support assistance, in accordance with the United Nations Charter, to any Party to the Convention which so requests, if the Security Council decides that such Party has been exposed to danger as a result of violation of the Convention.
Since the treaty’s entry into force in 1975, states parties hardly looked at the one-paragraph article. Up to the 7th Review Conference (2011) the only additional understandings and agreements concerned general implementation procedures and possible roles of appropriate international organisations, including the World Health Organisation (WHO), the World Organisation for Animal Health (OIE) and the Food and Agricultural Organisation (FAO), as well as coordination functions for the United Nations (UN). Attention to the article increased markedly at the 7th Review Conference, a consequence of a heightened perceived worldwide risk from emerging and re-emerging diseases, fears of outbreaks resulting from biosecurity and -safety lapses in high-containment laboratories, concerns about scientific and technological advances in the life sciences that could be misused for hostile purposes, potential terrorist or criminal interest in highly contagious pathogens, and so on. The Ebola outbreak in West Africa between 2013–16 and subsequent evaluation of the international response raised concerns among the BTWC states parties about how the international community might respond to a deliberate disease outbreak, whether as a consequence of an act of war or terrorism.
These trends have led to an affirmation of the humanitarian dimension of Article VII. As Nicholas Sims noted in his study of the treaty’s early functioning (The Diplomacy of Biological Disarmament. 1988, p. 24): ‘Statements made in the UN, with an eye on future references to the negotiating history of the convention, indicate that this article is generally understood to refer to humanitarian, not military, assistance.’ With nothing seemingly contradicting today’s humanitarian imperative, most attention has so far gone to the organisation and coordination of international response to the release of a highly infectious biological weapon (BW).
Questions about triggering Article VII
Much less understood is how Article VII can be activated. There are no procedures; there has not been any determination who should be involved in the process. Which are the (possible) roles for the BTWC Implementation Support Unit (ISU), the treaty’s three depositary states (Russia, United Kingdom and United States), the UN Secretary-General (UNSG), or the UNSC is a question that remains unanswered. It should be added in this context that some actors or available tools are of much more recent origin and were consequently not envisaged during the treaty negotiation. The mandate for the ISU was decided at the 6th Review Conference (2006). The UNSG’s mechanism to investigate allegations of chemical and biological weapons (CBW) use received endorsement from the UNSC and the UN General Assembly (UNGA) in 1988 and has since then been strengthened. Through the review process, BTWC states parties have elaborated a consultative mechanism under Article V to address compliance concerns.
Moreover, given the humanitarian framework guiding today’s debates on implementing Article VII, from the perspective of triggering the provision there are several dissonant elements. The article has its origins in a 1968 working paper by the United Kingdom proposing a separate treaty banning biological warfare. The language underwent several reiterations over the next three years and at one point disappeared entirely from the draft convention, only to resurface in its current formulation just before the conclusion of the negotiations. The different versions of the article left traces from earlier intentions and understandings, meaning that the intent behind certain phrases that may be uncertain or appear confusing today. This is particularly the case for the following:
- provide or support assistance: what is the nature of the assistance, humanitarian, military, or any other type?
- in accordance with the United Nations Charter: why does the article include a reference to the UN Charter, particularly since the Charter allows for punitive actions and even resort to military force under Chapter VII? In addition, if the assistance is humanitarian, as assumed today, what prompted the reference to the UN Charter? The word ‘humanitarian’ features only once in the founding text (Chapter I, Article 1, 3); the words ‘aid’ or ‘assistance’ (in the sense of humanitarian or non-military aid) are absent. Furthermore, while the UN’s mandate includes the promotion of arms control and disarmament, nothing in the Charter makes it responsible for monitoring treaty compliance or addressing treaty violations. Besides Article VII, only Articles V and VI refer to the Charter or UNSC. The context concerns the resolution of any problems relating to the BTWC’s objective, way of implementation, or breaches of the convention.
Article V raises the possibility of organising bi- and multilateral consultations and cooperation ‘through appropriate international procedures within the framework of the United Nations and in accordance with its Charter’ in case direct interaction between the parties concerned is impossible or unproductive. Overall the provision is vague. Review conferences have tried to clarify it, in particular with regard to the convening of a consultative meeting. Article VI grants a state party the right to lodge a complaint with the UNSC if it believes that another state party has breached its treaty obligations. Furthermore, should the UNSC initiate an investigation, all states parties undertake to cooperate with such investigation. However, states parties have not elaborated on the references to the UN Charter and the UNSC. They have also not answered whether there is or should be any linkage between either Articles V or VI and Article VII.
- if the Security Council decides that such Party has been exposed to danger: why is there a requirement for Security Council action if assistance can be provided under basic humanitarian principles? On what basis will the UNSC make this decision? The Third and Fourth Review Conferences (1991 and 1996) noted under both Articles V and VI the UNSG’s investigative mechanism as endorsed in UNSC Resolution 620 (1988) and UNGA Resolution 45/57 (1990) and ‘to consult, at the request of any State Party, regarding allegations of use or threat of use of bacteriological (biological) or toxin weapons and to cooperate fully with the United Nations Secretary-General in carrying out such investigations’. Later review conferences refer back to this text and have not elaborated any further on the references to the UN Charter or the UNSC. The UNSC, as its name indicates, bears primary responsibility for the maintenance of international peace and security (Chapter V, Article 24, 1). Logic therefore suggests that Article VII applies exclusively to the deliberate use of a pathogen or toxin as a weapon. This would thus exclude a situation of a country facing an outbreak after an accidental release of a disease-causing agent from a neighbour’s secret BW research or production facility (similar to the anthrax outbreak near Sverdlovsk in 1979). In other words, according to this interpretation Article VII refers to an act of war, even though the BTWC lacks references to ‘use’ in both its title and Article I.
- as a result of violation of the Convention: does this clause imply violation of any part of the BTWC? If affirmative, this could include illicit weapon programmes or outbreaks resulting from illicit activities. How would this square with the interpretation that Article VII only refers to an act of war?
Furthermore, only states parties can violate the BTWC, which implies that dangers arising from other actors—non-states parties (signatory or non-signatory states) or non-state actors—could not be the subject of Security Council action, and therefore not of state party assistance.
Aim of the research paper
In November 2016, in the margins of the 8th Review Conference of the BTWC, the Fondation pour la recherche stratégique (FRS) and UN Institute for Disarmament Research (UNIDIR) held a tabletop exercise (TTX) to understand better the elements that would have to be in place to trigger Article VII and the consequences such action may have on the organisation of international assistance. The TTX revealed that decision-making was severely hampered because of the article’s lack of clarity, uncertainty about possible procedures and their consequences on the process as a whole, and the types of actors that could be called upon (e.g. UNSG, ISU, depositary states, etc.).
Discussions at a workshop on ‘Article VII of the BWC and the UN System’, held in New York on 12–13 December 2017 as part of the Project on strengthening global mechanisms and capacities for responding to deliberate use of biological agents, also touched upon the specific responsibilities of UN organs following activation of Article VII. The question was raised whether there was any relevancy in trying to recover the negotiators’ original intentions. In reply, UN officials said that since the implications of triggering Article VII had never been studied and no procedures have ever been put in place, following a request the first task for the UN would be to study legal and negotiation documents to determine which types of action might be possible and which roles the UNSC and UNSG might play.
This research paper traces the article’s negotiation history between 1968 and 1971. During those three years negotiations took some sharp turns, and draft treaty texts were dropped and replaced by alternatives that framed BW control in radically different ways. In the final two months of negotiation, some degree of synthesis between different approaches took place. With respect to Article VII, when Morocco introduced an amendment to reinsert language based on the British proposal of August 1971, the context had completely changed, not in the least because the original draft provisions banning methods of biological warfare and a mechanism to investigate allegations of BW use had been dropped. Whereas Article IV in the original British draft convention formed part of the fabric to prevent biological warfare, the later Article VII had no obvious connections to the BTWC’s core prohibitions in Articles I – III. It also lacked direct or explicit links to Articles V and VI.
Moreover, the humanitarian intent, systematically affirmed by British government officials and diplomats, became blurred at times, especially after an addition to a draft UNSC resolution that was to accompany the BTWC made explicit reference to Article 51 of the UN Charter on individual and collective self-defence. It shifted the focus away from aiding the victim of a biological attack to possible assistance in countering the aggressor.
Download the full research report
Michael Crowley, Chemical Control: Regulation of Incapacitating Chemical Agent Weapons, Riot Control Agents and their Means of Delivery (Palgrave Macmillan: Basingstoke, 2015), 378p.
Anybody who has attended one of Michael Crowley’s annual presentations at the Organisation for the Prohibition of Chemical Weapons (OPCW) on the challenges posed by riot control and incapacitating agents for the future of the Chemical Weapons Convention (CWC) knows his passion for the subject matter. And his overwhelming knowledge about the latest developments in science, technology, industry and government policies. These characteristics also typify his book on the topic, Chemical Control, published late last year.
The book can be read on three levels:
- as an almost encyclopaedic presentation of facts,
- as an in-depth analysis of the regulatory regimes pertaining to chemical crowd control agents, which leads to concrete policy recommendations, and
- as a treatise on the analytical framework that has guided the research and the book structure.
Each level has merit in its own right. The third one, however, lifts this book above many other monographs on weaponry. Not just because of the ways in which it has informed Crowley’s research and analysis, but because it opens windows to fundamental debates on the purpose of disarmament and arms control today and tomorrow. He was right to resist calling his analytical framework a theory, but it nevertheless contains elements of theory. He formulates certain assumptions, but the book’s primary goals unfortunately do not give him the space to discuss them in depth. Because Crowley fundamentally questions some traditional understandings of the purpose of disarmament and arms control, he lays down an intellectual challenge that disarmament theorists or international lawyers cannot ignore.
A rich data source
The first level is that of the researcher’s data paradise. The monograph offers highly technical and detailed information on the nature of riot control and incapacitating agents and their delivery systems, the research and development behind them, where they are being manufactured and how they are traded, and most importantly for the other levels on which the book can be read, where and how they are being used.
Chemical warfare has its fair share of horror stories. About the impact of toxic chemicals on the body—from the painful and slow-healing blistering of the skin by mustard agents to the uncontrollable convulsions caused by exposure to sarin or other nerve agents. About the human experiments conducted not just in the Japanese prisoner of war camps in China in the Second World War or the dungeons of the darkest totalitarian regimes, but also in the bastions of Western democracy. Until today veterans in the UK and the USA, for example, are fighting to have their contribution to the national defence effort officially recognised and receive adequate compensation and health care—if they are still alive.
However, it is quite a different present-day horror story to read that quite a few states use incapacitants and riot control agents (such as tear gas)—toxic chemicals that some try to sell to public opinion as so-called non-lethal or humane weapons—to torture prisoners or regime opponents. Page after page, table after table Crowley details national practices of certain countries. They beggar belief were it not for the fact that source references make up two-thirds of the pages with tables.
Crowley methodically presents the different types of agent together with their characteristics and consequences after exposure, the country armament programmes and practices, and incidents. He never meant those pages to be read in a systematic way; they are detailed reference materials for researchers worldwide. In that sense he comes as close as possible to an encyclopaedic treatment of the subject matter. Future reports by him and other researchers will have to update the data sets.
If assimilation of this wealth of data might appear daunting, then section introductions and conclusions pull the main strands of his empirical analysis neatly together.
Considerations for policy shapers and makers
The second level is that of policy advice. I must admit that when I first saw the table of contents and noticed that the final chapter addressed conclusions and recommendations I had concerns about the substance of the book. It is one thing to undertake solid empirical research; it is quite a different thing to lay out arguments (and thereby present data selectively) in support of policy recommendations. Too often such treatises display superior argumentative logic, all the while lacking foundation in factual reality. Or they may sink to the level of wholly speculative ‘may and might’ analyses spinning hypothetical, often worst-case scenarios whose projected consequences then inform policy recommendations.
To my relief Crowley avoids this trap because a solid analytical framework structures his analysis (see the third level below). Thus after having laid out the technical aspects and national programmes of crowd control agents, he moves to the regulatory regimes. Again he proceeds systematically. In what amounts to over half of the book, he devotes a chapter each to arms control and disarmament law, international humanitarian law, human rights law, international criminal law, technology transfer control regimes, and UN drug control conventions. For each of the treaties, regulations, policy declarations, or informal arrangements (such as the Australia Group or Wassenaar Arrangement) Crowley presents the reader with a summary of the objectives and tools, an analysis of their implementation, and options for amelioration.
In the penultimate chapter he examines how civil society can contribute to the strengthening and implementation of the respective regimes. It comprises a comprehensive overview of ideas that have been explored in the fields of chemical and biological weapon control over the past decade and a half, as well as various initiatives whose primary concern have been the humanitarian and human rights consequences of the application of crowd control agents. In the process the author comments on such activities and suggests further options and improvements.
Crowley’s recommendations are rooted in this detailed analysis. He identifies areas of action where governments (and by extension, intergovernmental organisations) have to assume their responsibilities with regard to the strengthening and implementation of the international rules. He also considers how civil society constituencies can contribute to the strengthening of existing tools (e.g., through the development of ethical and professional codes of conduct, educational initiatives, etc.) or develop independent initiatives to track developments (e.g., open source monitoring of the use of crowd control agents or the political and technological imperatives for their further development and international commercialisation) with a view of holding policy makers accountable.
The final chapter thus comprises succinct summaries of the issues treated in the preceding chapters and related policy recommendations.
As already indicated in the introduction, to me the best aspect of the book is the analytical framework. Crowley calls it ‘holistic arms control’ (HAC). It concentrates on existing arms control and disarmament measures, but seeks to expand on the numbers and types of regulatory measures and broaden the range of possible stakeholders.
The ambition is not small: he must weave a net whose meshes are sufficiently wide to catch all relevant data, while small enough to filter out irrelevant elements. Moreover, his construct is multidimensional, capturing the technologies together with national and human security concerns of inappropriate use, all relevant international legal regimes and other types of regulation together with the relative strengths and weaknesses, and possible strategies to reinforce all barriers against misuse of crowd control chemicals.
He deconstructs this ambition in the opening chapter and in the process outlines a step by step methodology that will form the backbone for the whole book. Cowley’s rigid adherence to the model contributes significantly to the readability of his analysis: throughout the reader remains aware of the stage of analysis and when particular questions are likely to be addressed. At the same time, he leaves the reader with a strong sense of comprehensiveness by bringing in many elements that one might not immediately consider when touching upon the subject of incapacitating and riot control agents. His discussion of the 1971 UN Convention on Psychotropic Substances is but one example.
A theoretical knot
However, the HAC framework is not merely analytical, it is also aspirational. It carries elements of theory formation that offer the perspective of substantive debates on the purpose of disarmament in fast changing times. As the author states (p.4):
Recognizing that reliance upon a single disarmament or arms control agreement alone would not guarantee success, scholars have explored a number of concepts, seeking to broaden the range of possible regulatory mechanisms.
His analysis is therefore also aspirational:
Although the proposed HAC analytical framework concentrates upon existing arms control and disarmament measures, it attempts to widen the range of applicable mechanisms for regulation, and also the nature of the actors involved in such regulatory measures.
Consequently, HAC can be thought of as a framework for analysis to aid the development of a comprehensive, layered and flexible approach to arms control […]
Left unsaid is the central question: what is the core purpose of disarmament (as embedded in the Biological and Toxin Weapons Convention (BTWC) and the CWC, two key pillars of the regime against the misuse of incapacitating or riot control agents)? Furthermore, how do treaty regimes evolve in the light of technological, political and social changes over the years since their adoption and entry into force?
Humanitarian considerations have over the past two decades taken up a prominent place in the disarmament and arms control discourses. This means that today a different reference framework for judging effectiveness of a convention exists than the one originally intended: the focus of the public debate has shifted from the weapon technology (which must be eliminated) to the consequences of their use under a variety of circumstances on individuals and communities, which in turn has amplified calls to hold those responsible for violations accountable under national and international criminal law. That conflict of purpose is on clear display in the Syrian civil war: many people do not understand why the international community can invest resources in eliminating Syria’s chemical warfare capacity, but does not want to intervene to stop the slaughter of civilians.
The issue really becomes interesting when two humanitarian considerations intersect at a given decision-making moment in a disarmament setting, and a choice has to be made. Crowley points to such a moment during the 3rd CWC Review Conference in April 2013 (pp. 130–31), however without realising the underlying conflict (of conscience) that led to the item of incapacitating agents being dropped form the final document. The debate occurred when the number of reported chemical weapon (CW) incidents in the Syrian civil war was rising fast, and only a few weeks after the UN Secretary-General established a mission to investigate allegations of CW use. Including a condemnation of the escalating chemical warfare crisis proved highly controversial. Compromise was possible on severely weakened language only, which was totally unacceptable to the Western Group and Other States (WEOG). The final document was in the balance. Given that Poland was chairing the review conference, failure was not an option for the European Union members.
One WEOG ambassador was unable to get updated guidance on compromise language on the questions of incapacitants and Syria from his capital, and therefore had to decide under his personal responsibility (all the while bearing in mind that the successful outcome of the review conference hung in the balance). He opted to go with the compromise language on Syria and (in consultation with the original sponsor, Switzerland) drop references to incapacitants, a key consideration being that the issue could be taken up at a later date. Does such a decision make the CWC less effective? The consensus language in the final document would ultimately form a not insignificant foundation for subsequent action by the OPCW following the sarin attacks in the district of Ghouta less than four months later, and Syria’s accession to the CWC and subsequent disarmament. Outcomes at meetings can result from complex decision processes when different interests conflict with each other and priorities (often in function of developments at the time) need to be established.
So, I raise the question whether the global community is best served by finding ways to ameliorate core instruments or by broadening the range of tools in order to capture a particular issue of interest? I have no immediate answer because, as the book describes, science and technology and their application in various circumstances may evolve much faster than the international community can regulate them or update existing treaty regimes. Nevertheless, I do have the concern that multiplication of treaties and other regulatory instruments lead to different lists of states participating in each one of them and different levels of compliance and enforceability. That could lead to a cacophony of expectations based on different requirements and interpretations of obligations.
This final reflection is not a criticism of Chemical Control. The question touches upon theories of regime formation and international law and goes beyond the purpose of Michael Crowley’s book. However, it is a matter I definitely wish to engage him on. I can only commend him for offering a solid framework for structuring that particular debate on the future of disarmament and arms control and identifying the fundamental assumptions underlying both concepts.
[Cross-posted from The Trench]
[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.
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.
Innocence Slaughtered will be published in December 2015
In November 2005 In Flanders Fields Museum organised and hosted an international conference in Ypres, entitled 1915: Innocence Slaughtered. The first major attack with chemical weapons, launched by Imperial German forces from their positions near Langemarck on the northern flank of the Ypres Salient on 22 April 1915, featured prominently among the presentations. I was also one of the speakers, but my address focussed on how to prevent a similar event with biological weapons. Indeed, it was one of the strengths of the conference not to remain stuck in a past of—at that time—nine decades earlier, but also to invite reflection on future challenges in other areas of disarmament and arms control. Notwithstanding, the academic gathering had a secondary goal from the outset, namely to collect the papers with historical focus for academic publication.
The eminent Dutch professor and historian Koen Koch chaired the conference. He was also to edit the book with the historical analyses. Born just after the end of the 2nd World War in Europe, he sadly passed away in January 2012. He had earned the greatest respect from his colleagues, so much so that the In Flanders Fields Museum set up the Koen Koch Foundation to support students and trainees who wish to investigate the dramatic events in the Ypres Salient during the four years of the 1st World War. The homage was very apt: Professor Koch had built for himself a considerable reputation as an author of studies on the 1st World War. Most remarkable: The Netherlands had remained neutral during the conflagration, which adds to the value of his insights.
Death, unfortunately, also ends projects. In the summer of 2014, while doing some preliminary research on the history of chemical warfare, I came across the manuscripts of the chapters that make up the bulk of this book. They were in different editorial stages, the clearest indication of how abruptly the publication project had screeched to an end. Reading them I was struck by the quality of the contents, rough as the texts still were. Together, the contributions also displayed a high degree of coherence.
One group of papers reflected on the minutiae of the unfolding catastrophe that the unleashing of chlorine against the Allied positions meant for individual soldiers and civilians. They also vividly described German doubts about the effectiveness of the new weapon, and hence its potential impact on combat operations. These contributions also reflected on the lack of Allied response to the many intelligence pointers that something significant was afoot. In hindsight, we may ponder how the Allied military leaders could have missed so many indicators. Yet, matter-of-fact assessments of gas use by Allied combatants recur in several chapters, suggesting either widespread anticipation of the introduction of toxic chemicals as a method of warfare or some degree of specific forewarning of the German assault. Gaps in the historical record, however, do not allow a more precise determination of Allied anticipation of chemical warfare. Still, a general foreboding may differ significantly from its concrete manifestation. From the perspective of a contemporary, the question was more likely one of how to imagine the unimaginable. Throughout the 2nd Battle of Ypres senior Allied commanders proved particularly unimaginative. In the end, the fact that German military leaders had only defined tactical goals for the combat operations following up on the release of chlorine, meant that they had forfeited any strategic ambition—such as restoring movement to a stalemated front, seizing the Channel ports, or capturing the vital communications node that Ypres was—during the 2nd Battle of Ypres, or ever after. The surprise element was never to be repeated again. Not during the 1st World War, not in any more recent armed conflict.
The second group of papers captured the massive transformation societies were undergoing as a consequence of industrialisation, science and technology, and the impact these trends were to have on the emergence of what we know today as ‘total war’. Chemical warfare pitted the brightest minds from the various belligerents against each other. The competition became possible because the interrelationship between scientists, industry, politicians and the military establishment was already changing fast. But chemical warfare also helped to effectuate and institutionalise those changes. In many respects, it presaged the Manhattan Project in which the various constituencies were brought together with the sole purpose of developing a new type of weapon. In other ways the competition revealed early thinking about racial superiority that was to define the decades after the Armistice. The ability to survive in a chemically contaminated environment was proof of a higher level of achievement. In other words, chemical defence equalled survival of the fittest. Or how Darwin’s evolutionary theory was deliberately misused in the efforts to justify violation of then existing norms against the used of poison weapons or asphyxiating gases.
During and in the immediate aftermath of the war, opposition to chemical warfare was slow to emerge. In part, this was the consequence of the appreciation by soldiers in the trenches and non-combatants living and working near the frontlines that gas was one among many nuisances and dangers they daily faced as its use became more regular. Defences, advanced training and strict gas discipline gave soldiers more than a fair chance of surviving a gas attack. The violence of total war swept away the humanitarian sentiments that had given rise to the first international treaties banning the use of poison and asphyxiating gases in the final year of the 19th century. Those documents became obsolete because people viewed modern gas warfare as quite distinct from primitive use of poison and poisoned weapons or the scope of the prohibition had been too narrowly defined. By February 1918 chemical warfare had become so regular that a most unusual public appeal on humanitarian grounds by the International Committee of the Red Cross (ICRC) badly backfired on the organisation. Throughout the 1920s the choice between an outright ban on chemical weapons and preparing populations for the consequences of future chemical warfare would prove divisive for the ICRC. In contrast, peace and anti-war movements in Europe campaigned against war in all its aspects and consequently refused to resist one particular mode of warfare before the Armistice. It is instructive to learn that opposition to chemical warfare specifically first arose far away from the battlefields—northern America and neutral Netherlands—and among a group of citizens not directly involved in combat operations: women. And perhaps more precisely, women of science who protested the misapplication of their research and endeavours to destroy humans. Just like the chlorine cloud of 22 April 1915 foreshadowed the Manhattan project, the Women’s International League for Peace and Freedom presaged the Pugwash Conferences on Science and World Affairs, who would bring together scientists, academics and political leaders to counter the growing menace of nuclear war and find solutions to other threats to peace and security.
It was clear to me that I should not remain a privileged reader of the manuscripts. They contained too much material and insights that the broader public should have access to. Piet Chielens, curator of the In Flanders Fields Museum, and Dominiek Dendooven, researcher at the Museum, could not agree more, and so a new publication project was born. However, since the centenary of the chlorine attack was only a few months away, reviving the academic product Koen Koch had been working on was initially not an option. So, the decision was to exploit modern communication technologies and produce the volume as a PDF file in first instance. However, by the time the electronic edition was ready for online publication, In Flanders Fields Museum had found a publisher willing and able to produce a formal edited volume before the end of the centenary year of the first modern gas attack. My gratitude goes to Ryan Gearing of Uniform Press for his guidance and concrete assistance in making this book a reality.
Time for preparing this publication was very short. To my pleasant surprise, every author in this volume responded favourably and collaboration over several intense weeks—both in the preparation of the original PDF version and the subsequent book project—proved remarkably gratifying and productive. Some contributors even took the time to introduce me to certain concepts widely accepted among historians, which I, with my background in linguistics and political science, had interpreted rather differently. For the experience in preparing this volume, I indeed wish to thank every single contributor.
22 April 1915 was not just the day when the chlorine cloud rolled over the battlefield in Flanders. It also symbolises the confluence of often decade-old trends in science, technology, industry, military art and the way of war, and social organisation. That day augured our modern societies with their many social, scientific and technological achievements. However, it was also a starting point for new trends that eventually led nations down the path of the atomic bomb and industrialised genocide in concentration camps. It also highlighted the perennial struggle of international law and institutions to match rapid scientific and technological advances that could lead to new weapons or modes of warfare. This volume captures the three dimensions: the immediate impact of poison warfare on the battlefield, the ways in which the events in the spring of 1915 and afterwards shaped social attitudes to the scientification and industrialisation of warfare, and the difficulties of capturing chemical and industrial advances in internationally binding legal instruments. Indeed, there can be no more poignant reminder that our insights into the trends that brought the chlorine release 100 years ago are crucial to our understanding of trends shaping our societies today and tomorrow.
Yes, the world has moved on since the 1st World War, even if the use of chlorine in the Syrian civil war one century later may seem to challenge the thought. Yet, one institution may unwittingly have come to symbolise the progression. Fritz Haber, the scientific and organisational genius who led Imperial Germany’s chemical warfare effort in 1915, was awarded the Nobel Prize for Chemistry in 1918. Typical for the day, the Nobel Committee detached scientific achievement from moral considerations. His contribution to the development of a synthetic fertiliser for agricultural use, for which he got the prize, equally enabled Germany to continue munition production in the face of an Allied blockade denying it access to foreign raw materials. Haber’s part in chemical warfare too fell entirely outside the Nobel Committee’s considerations. Ninety-five years later, in 2013, the Organisation for the Prohibition of Chemical Weapons received the Nobel Peace Prize for its progress in eliminating the scourge of chemical warfare. The decision represented a strong moral statement, for it reflected the (Norwegian) Nobel Committee’s views that today chemistry, and science in general, should serve peaceful purposes. Therefore it is indeed painfully paradoxical that the successful elimination of the most toxic substances developed and produced for warfare has resulted in the return of chlorine, today a common industrial chemical, as a weapon of choice in the Syrian civil war that started in 2011.
We indeed still experience the consequences of 22 April 1915: this dichotomy between the application of science and technology for life and their mobilisation for war continue to characterise our societal development today. This realisation explains why I thought that the papers, initially prepared under the guidance of Professor Koen Koch, should see the light of day. Particularly now.
Jean Pascal Zanders
Ferney-Voltaire, October 2015
[Cross-posted from The Trench.]
Today, 17 June, the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of Warfare celebrates its 90th anniversary. Short as the document is, it laid the foundations for the 1972 Biological and Toxin Weapons Convention (BTWC) and the 1993 Chemical Weapons Convention (CWC). How critical that document was to disarmament—the total elimination of a given weapon category—the global community can only appreciate through the growing frustration with the lack of progress in the elimination of nuclear weapons. As the negotiators of the Geneva Protocol came to understand in 1925, without a global ban on use, no other weapon-related activities could legally be curtailed.
This three-part analysis retraces the origins of the Geneva Protocol and identifies its implications for disarmament.
Part 1 focusses on the discovery of the dual-use dilemma posed by toxic chemicals and the conclusions the negotiators drew from their new insights.
Part 2 analyses how the negotiators resolved the dual-use dilemma in meetings preparing the disarmament conference of the 1930s, and in the process came up with solutions that make up the pillars of disarmament today.
Part 3 reflects on how the Geneva Protocol experience may point to a tangible nuclear disarmament strategy in view of the failure of the 2015 review conference of the Nuclear Non-Proliferation Treaty (NPT) and the difficulties in reaching a satisfactory agreement with Iran to shed more transparency on its nuclear activities.
[Cross-posted from The Trench.]
The last day of October, a sunny Friday in The Hague, I met with Ambassador Ahmet Üzümcü to reflect on the previous year and a half, during which the civil war in Syria suddenly thrust the Organisation for the Prohibition of Chemical Weapons (OPCW) into the spotlight.
In March 2013 United Nations Secretary-General Ban Ki-moon requested technical assistance from the OPCW to investigate alleged chemical weapon (CW) use in the war-torn country. Six months later, after a serious incident in which sarin nerve agent killed and poisoned many hundreds of people in the Ghouta district of Damascus, Syria unexpectedly joined the Chemical Weapons Convention. And so began an urgent and perilous disarmament project. The announcement that the OPCW was to receive the 2013 Nobel Peace Prize just knocked international expectations from the organisation several notches higher.
The Syrian disarmament project has had a clear impact on the OPCW. Not just on its daily operations during the past 18 months, but it will also affect its future. However, the key question is whether the OPCW’s success in trying circumstances can inspire the international community to revive disarmament as a security tool.
Syria’s CW precursors have been evacuated and are almost all destroyed. Destruction of former CW production facilities has now begun. What were you thinking last year when you accepted the tight deadlines in the US–Russian Geneva Framework Agreement?
The Framework Agreement reached in Geneva on 14 September of last year was a significant achievement. The Russians and Americans wrapped up their negotiations in four days, which surprised us as much as the whole international community. We knew that the OPCW could be called on to address the chemical part of the Syrian conflict. In which form and under which conditions, we did not know then. Even so we were prepared to get involved and if necessary, to take the lead, all the while knowing such a project would be very challenging.
We first saw this document on 14 September. On 27 September, the Executive Council decided on OPCW involvement and a few hours later the United Nations Security Council (UNSC) endorsed that decision. Between both dates, we had 13 days to prepare our team for deployment to Damascus, work out the modalities, and so on. Having said that, I should add that the Technical Secretariat had been preparing itself for several contingencies. They included possible investigation of alleged CW use. We were thus ready when in March 2013 the UN Secretary-General called upon our expertise. In September, we had a team of 60 volunteer inspectors ready to go to Syria. They had trained to carry out different tasks.
Still, I was following the Geneva talks from Beijing. The negotiators raised questions whether we would be ready to do this or that. Our responses were all positive. We looked at our gaps. We identified a few areas where we would need some additional support, so we decided to rehire some of our former experts and hire some external experts. Important to us was to act swiftly and diligently. We also had to demonstrate to the international community that after 16 years the OPCW had the necessary capacity and expertise. I think we succeeded.
As I said, on Friday, 27 September, the decision was taken here. The same day the UNSC endorsed it in a resolution. On Monday, our inspectors were on their way. On Tuesday, they arrived in Damascus. The UN clearly had some difficulties to match this pace. The UN mechanism is huge compared to ours. So I called Secretary-General Ban Ki-moon on Thursday, the day before the UNSC decision. I told him that we were ready to deploy and asked him for logistical and security support, which we received. Despite the magnitude of the challenge and the security situation in Syria, I think the Technical Secretariat was fully prepared to lead. When I say ‘lead’, I of course refer to the technical part of the operation. We relied on the UN for logistical support and security.
The other obvious challenge was the financial dimension. In that respect, having seen the support from the whole international community for this Russian–US initiative, I actually did not have any concerns. It was proven later on that we would have the necessary funds in both the UN and the OPCW Trust Funds. Financial aspects would not be problematic and they never were.
A year ago, I should say, we were both mentally and physically prepared to go to Syria. I personally was involved in setting up a task force, which I chaired every morning on the 7th floor of the OPCW headquarters. This also gave me the opportunity to know better some of our staff members. They were really capable and pleased to be able to help coordinate such a major operational mission.
I am not the only person who is concerned by the banalisation of tear gas as a riot control agent. Over the past few years, the intensity with which such agents have been used has increased markedly, to the point that whole sections of cities now routinely become saturated with the toxic chemicals. In particular Michael Crowley of Bradford University’s Non-Lethal Weapons Project has published studies on the fast technological development and growing global markets of riot control agents and their delivery systems: one in collaboration with the Omega Research Foundation, and one, co-authored with Dana Perkins, then expert of the 1540 Committee, for the Biochemical Security 2030 Project, University of Bath. Likewise, the Physicians for Human Rights issued a report in 2012 on the Bahrain government’s indiscriminate use of tear gas, and in 2013 another one on tear gas excesses in Turkey.
The recent massive use of tear gas by a highly militarised local police force to quell riots in Ferguson, Missouri, has drawn renewed attention to a weapon that the Chemical Weapons Convention bans as a tool of warfare.
Anna Feigenbaum has just published a historical overview of tear gas in The Atlantic, starting with the fist use of a chemical weapon by the French in World War 1 exactly 100 years ago this month.
Perhaps most striking is her compilation and mapping of global tear gas use during 2013 (my screenshot):
A PDF printout of the incidents she has listed runs for 19 pages.
Alas, if a riot control agent is used as a tool for law enforcement or domestic riot control purposes, then the Chemical Weapons Convention does not consider it as a chemical weapon and therefore falls outside its scope of application.
[Cross-posted from The Trench]