The HSP Draft Convention

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Text of the Convention

Starting in 1996 and at workshops in 1997 and 1998, with advice from an international group of legal authorities, HSP has developed a draft convention that would make it a crime under international law for any person, regardless of official position, knowingly to develop, produce, acquire, retain, transfer or use biological or chemical weapons or to order, direct or knowingly render substantial assistance to those activities or to threaten to use biological or chemical weapons. Each State Party would be required, inter alia, (i) to establish jurisdiction with respect to such crimes according to established principles of judicial law, including the principles of territoriality, nationality, protection, and passive personality, and (ii) where the state has jurisdiction and if satisfied that the facts so warrant, to submit those cases to competent authorities for the purpose of extradition or prosecution. Further, with respect to the actual use of biological or chemical weapons, each State Party would be required to establish jurisdiction over all persons found on its territory regardless of their nationality or place of the offence.

The same obligations, to establish jurisdiction and to extradite or adjudicate (aut dedere aut judicare), are included in international conventions now in force for the suppression and punishment of international crimes including aircraft hijacking and sabotage (1970 and 1971), crimes against internationally protected persons (1973), hostage taking (1979), theft of nuclear materials (1980), torture (1984) and crimes against maritime navigation (1988). It was on the basis of the 1984 Torture Convention that Britain asserted jurisdiction in the case of Spain's request for extradition of former Chilean president Augusto Pinochet.

The Harvard Sussex draft convention defines biological and chemical weapons as they are defined in the BWC and the CWC, on the basis of a general purpose criterion worded so as to prohibit activities undertaken with hostile intent, while not prohibiting those intended for protective, prophylactic or other peaceful purposes. Thus, Article 1 of the BWC defines biological weapons as:

(1) microbial or other biological agents, or toxins whatever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective or other peaceful purposes;

(2) weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict

Commission of a prohibited act is defined in the proposed convention as a crime only if committed "knowingly". It is an admissible defence that the accused person "reasonably believed" that the conduct in question was not prohibited. It is not a defence that a person acted in an official capacity or under orders of a superior.

The proposed convention includes provisions intended to guarantee due process and fair proceedings and requiring that any dispute between states concerning the interpretation or application of the convention be submitted, at the request of one of them, to arbitration or to the International Court of Justice in The Hague. There are also provisions requiring states parties to cooperate in investigations and to provide legal assistance to one another in the adjudication of offences.

The definitions and prohibitions in the present draft closely follow those in the BWC and the CWC. Consideration could be given, however, to possible modifications of the text in order to facilitate practical implementation as an instrument of criminal law and to provide additional safeguards for legitimate activities.

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