The HSP Draft Convention
Introduction Text Status Implementation Further Information
A proposal for prohibiting biological and other such armament under international criminal law
This initiative
originates in HSP research begun during the mid-1990s to examine
the possible contributions that international criminal law might
make to strengthening the regime against CBW. From this emerged
the idea of creating a new international treaty, alongside the Biological
Weapons Convention of 1972 (the BWC) and Chemical Weapons Convention
of 1993 (the CWC),
building on existing legal precedents and international agreements,
that would confer on national courts jurisdiction over individuals
present in their national territory, regardless of their nationality
or official position, who order, direct, or knowingly render substantial
assistance to the use of biological or chemical weapons anywhere.
Encouraged by expressions of interest from a number of European
governments, we are now moving the idea through the relevant academic
and legal communities into the domain of public policy making. The
background to our proposal is as follows:
Background
Any development,
production, acquisition or use of biological or chemical weapons
is the result of decisions and actions of individual persons, whether
they are government officials, commercial suppliers, weapons experts
or terrorists. The international conventions that prohibit these
weapons, the BWC and the CWC, however, are directed primarily to
the actions of states, and address the matter of individual responsibility
to only a limited degree.
Article 4 of
the BWC and Article 7 of the CWC require each state party to prohibit
activities on its territory that are prohibited to a state party.
The CWC explicitly requires each state party to enact penal legislation
to this effect, applicable also to activities of its own nationals
anywhere.
Nevertheless,
the BWC and the CWC stop short of requiring a state party to establish
criminal jurisdiction applicable to foreign nationals on its territory
who commit biological or chemical weapons offences elsewhere --
and neither convention contains provisions dealing with extradition.
These deficiencies
are not remedied by the provisions applicable to biological and
chemical weapons in the Convention for the Suppression of Terrorist
Bombings, opened for signature in January 1998, or in the Rome Statute
of the International Criminal Court, which entered into force on
1 July 2002. The Bombing Convention does not apply to the activities
of military forces in the exercise of their official duties or to
internal state acts -- such as the use of CBW weapons by a leader
against a population within his own state. Nor does the scope of
either of these agreements extend beyond the actual use of CBW weapons
to include, as do the BWC and the CWC, their development, production,
acquisition and stockpiling.
National criminal
legislation, so far enacted by only a minority of states, is no
substitute for international criminalization. Purely national statutes
present daunting problems of harmonizing their various provisions
regarding the definition of crimes, rights of the accused, dispute
resolution, judicial assistance and other important matters. Neither
do national criminal statutes convey the universal condemnation
implicit in international criminal law. Moreover, the national legislation
of a state would generally have no applicability in the case of
a non-citizen present in that state who has, for example, ordered
or knowingly rendered substantial support to the use of biological
weapons elsewhere.
What is needed
is a new treaty, one that defines specific acts involving biological
or chemical weapons as international crimes, like aircraft hijacking
or torture. Treaties defining international crimes are based on
the concept that certain crimes are particularly dangerous or abhorrent
to all and that all states therefore have the right and the responsibility
to combat them. Certainly in this category, threatening to the community
of nations and to present and future generations, are crimes involving
the hostile use of disease or poison and the hostile exploitation
of biotechnology.
|