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THE CBW CONVENTIONS BULLETIN News, Background and Comment on Chemical and Biological Weapons Issues THE CBW CONVENTIONS BULLETIN News, Background and Comment on Chemical and Biological Weapons Issues ISSUE NO. 54 DECEMBER 2001 Quarterly Journal of the Harvard Sussex Program on CBW Armament and Arms Limitation INTERNATIONAL CRIMINAL LAW AND SANCTIONS TO REINFORCE THE BWC Prospects for strengthening the Biological Weapons architecture of international measures to strengthen the Convention any time soon appear to have faded still further BWC. Controls on access to dangerous pathogens and since their setback in July, when the United States withdrew certain dual-use equipment can impede their acquisition by its support for the efforts of the Ad Hoc Group of States non-state actors and non-self-sufficient states seeking Parties to design a legally binding instrument to strengthen biological weapons. But the widespread natural occurrence the Convention. It was then widely expected that the Bush of most pathogens that have been or can be developed as Administration would present new proposals at the weapons, and the accelerating worldwide diffusion of bio- Convention’s Fifth Review Conference, which took place in technology, make only temporary the effect of such controls Geneva from 19 November to 7 December. However, as on any nation or group determined to have the weapons. described in “Report from Geneva” in this issue of the Intent, more than denial, is the crucial element to be Bulletin, what the US proposed was a set of mostly old ideas addressed in seeking to strengthen the Convention. To some for voluntary measures by individual states, without any extent, this can be done by propagating among scientists and binding treaty commitment. others the humanitarian norm against biological weapons as Chances that the US proposals, or any others, would be abhorrent and illegal. But any effective system must include endorsed by the Conference were torpedoed when, near the not only positive elements of cooperation and openness but end of the last day, the US delegation sought to include in also the element of deterrence that stems from a risk of the Conference’s Final Declaration words that would violations being detected and credible sanctions if they are. terminate the Ad Hoc Group and its mandate to consider Deterrence is at the heart of the international system of measures to strengthen the BWC, including verification declarations, on-site visits and challenge investigations that measures, to be included in a legally binding instrument. has been under discussion by the Ad Hoc Group. Properly As it was well-known that such termination is opposed designed, such a system can deprive states considering by the majority of delegations and as BWC review confer- violation of the BWC of confidence that their attempts at ences normally adopt their final declarations by consensus, deception and coverup will not arouse suspicion and trigger the US proposal was, in effect, a poison pill that forced investigation and that their prohibited activities can be kept immediate adjournment, with only an agreement to resume hidden. Indeed, even the minimally intrusive system the Conference a year later. With no Final Declaration and envisaged in the latest draft BWC Protocol would help therefore no international endorsement of any of its undermine confidence that such activities could be kept proposals, it is hard to see what the US was seeking to secret, as evidenced, for example, by US anxiety that accomplish with its last-minute action. Rather, it appeared implementation of such a scheme would risk disclosure of that the Administration was internally divided even as its own biodefence activities. The further design and regards its own proposals put forward earlier during the evaluation of such a system could benefit from voluntary Review Conference. bilateral and multilateral field trials of transparency and Opposed to verification measures that it fears might compliance measures at biodefence and industrial facilities, reveal biodefence and intelligence activities it hopes to keep beyond those few that have so far been carried out, possibly secret; ill-disposed to multilateral arms-control measures followed by their actual implementation on a regional basis. generally; and yet deeply worried about the menace of biological weapons, the White House seems to have no Editorial 1–2 integrated long-term strategy to keep the barriers against Progress in The Hague: 36th Quarterly Review 2–13 these weapons from eroding. In promising much but so far delivering only an adjourned BWC Review Conference, the Report from Geneva: 17th Quarterly Review 13–26 US has dismayed governments elsewhere that share the Proceedings in South Africa: 7th Quarterly Review 26–28 same worry, including those of close allies. What then can be done? One priority must be to lay the News Chronology August–October 2001 28–58 groundwork for a successful conclusion of the Fifth BWC Forthcoming Events 57 Review Conference that will resume in November 2002. Recent Publications 58–60 More generally, the time is right for a review of the entire The ultimate goal, however, must be the implementation of nation implicit in international criminal law. Moreover, such a system globally. purely national legislation would generally have no applica- That leaves the problem of sanctions, without which bility, for example, in the case of an offender present in state detection of noncompliance lacks effect. As the Bulletin has A who has produced or ordered the production of biological long urged, the acquisition and use of biological and weapons in state B, of which he or she is a national but which, chemical weapons should be criminalized under inter- for one reason or another, has no intention to take action. An national law, like aircraft hijacking and torture. A new international criminalization treaty, however, would subject international treaty is needed, one that would confront any such a person to the risk of prosecution or extradition should individual who orders or knowingly renders substantial aid he or she be found in any state that supports the treaty. Some in the production or use of biological or chemical weapons states are giving favourable consideration to international with the risk of prosecution or extradition should that person criminalization and some, notably Switzerland, have said so be found in a state that supports the treaty. A draft of such a publicly. treaty, prepared by the Harvard Sussex Program with advice Modern treaties now in force creating international from international legal authorities, may be found on the criminal law have typically been elaborated within the Sixth HSP website at <www.fas.harvard.edu/~hsp/crim01.pdf>. (legal) Committee of the United Nations General Assembly. Enactment of national criminal legislation, as some states An alternative route would be to develop an agreed text have already done pursuant to Article IV of the BWC, and within some other international group of states, either consti- enhancement of bilateral extradition agreements as proposed tuted ad hoc or based on an established regional grouping. by the United States, while desirable are no substitute for In any case, the proposed treaty would be open to any state international criminalization. Purely national statutes and wishing to join. bilateral extradition agreements present daunting problems Despite recent setbacks, the way remains open for streng- of harmonizing their separate provisions regarding the defin- thening the BWC. This can be done both in the further ition of crimes, rights of the accused, dispute resolution, design, trial and implementation of verification and trans- judicial assistance and other important matters. Neither does parency measures and in the creation of international law national criminal legislation convey the universal condem- criminalizing biological and chemical weapons. Progress in The Hague Quarterly Review no 36 Developments in the Organization for the Prohibition of Chemical Weapons The period under review, from early September through 7 underrepresented among the OPCW’s members states: the December 2001 was dominated by five main issues of South Pacific and Africa. concern for the continued implementation of the Chemical Weapons Convention (CWC) by the Organization for the Executive Council Prohibition of Chemical Weapons (OPCW). First, the financial shortfall that had plagued the The Executive Council convened its twenty-sixth session Organization since the beginning of 2001 continued to during 25–28 September and its twenty-seventh session impact programme delivery. Second, developments have during 4–7 December. The schedule of Executive Council occurred in the Russian effort to destroy its chemical sessions for 2002 was agreed upon as follows: the weapons stockpile. Russia has submitted its revised twenty-eighth session would be held during 19–22 March, programme of destruction to the OPCW and requested an the twenty-ninth session during 25–28 June, the thirtieth extension of its final destruction deadline for Category 1 session during 10–13 September, and the thirty-first session chemical weapons to 2012. By mid-November, Russia had during 10–13 December. The Conference of the States completed destruction of its Category 3 chemical weapons Parties, its seventh session, would be held during 7–11 stockpile, prior to the April 2002 deadline. Third, in the wake October 2002. of the September terrorist attacks on the United States and The Council met informally on 24 September and 3 heightened global awareness of the threat posed by both December to discuss progress in the destruction of chemical chemical and biological weapons, should they fall into the weapons and/or conversion of chemical weapons production hands of terrorists, the role the OPCW can play in any global facilities (CWPFs). During the period under review, strategy to combat terrorism became the subject of a debate informal consultations were held in early September, in the Executive Council. Fourth, preparations were mid-October, and mid-November. Issues discussed proceeding apace for the first CWC review conference, to included boundaries of production and captive use, plant site be convened in 2003.
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