The regime against CBW
The work of
HSP has long focused on the formation and proper functioning of
what may be thought of as an international regime to eliminate chemical/biological
warfare and its weapons: a regime building up and strengthening
the long-standing taboo against chemical/biological warfare that
is reflected its general vilification and codified in international
law: a regime that both complements and consolidates that wider
array of anti-CBW countermeasures developed by CBW defence scientists
and operated by military, police and other forces or services.
The core of
the regime thus envisaged is a construct of international law which,
through explicit rules, gives expression to an international norm
of behaviour, in this case the norm that eschews CBW. A developed
regime will also incorporate internationally agreed procedures for
implementing its rules, such as procedures for monitoring compliance
or even for agreeing sanctions against transgressors. Only in still-developing
form does such a regime yet exist for the suppression of CBW and
CBW employment. Its five main features are as follows
First, there
is the 1925 Geneva Protocol,
which is an international treaty whose states parties have agreed
among themselves not to use CBW weapons against one another. This
prohibition, building upon earlier agreements, such as those of
The Hague in 1899 and 1907,
is now generally considered to have entered customary international
law, thereby becoming binding upon all states whether they have
or have not formally joined the treaty.
Second, there
is the 1972 Biological Weapons Convention (BWC), which is an international declaration now subscribed to by
a large majority of states renouncing germ weapons in order to "exclude
completely" the possibility of such weapons being used against human
beings, other animals or plants. This international treaty, reflecting
the post-WW2 renunciation of biological weapons by the defeated
Axis powers, as in the 1954 Revised Brussels Treaty, was founded
upon unilateral renunciations of biological and then toxin weapons
which the United States through President Nixon announced during
1969-70. The 1972 Convention extended the existing regime of CBW
no-first-use established by the Geneva Protocol (and its antecedents)
by explicitly outlawing development, production and stockpiling
of biological and toxin weapons. The Geneva-Protocol regime thereby
extended is still a primitive one, for the 1972 Convention makes
essentially no provision for any particular procedures or forms
of international coöperation or organization to implement its rules,
or to enforce its norm of non-possession. At the time, this was
judged to be acceptable -- for quite different reasons, it would
now appear -- by the United States and the Soviet Union, who were
the co-chairs of the multilateral conference that negotiated the
Convention. Not all the negotiating partners agreed. France and
China remained outside the treaty until 1984. Opportunity for building
upon the treaty would, however, recur during the review conferences
for which the Convention provided. These opportunities were indeed
taken, with the institution of a variety of voluntary "confidence-building
measures". But subsequently confirmed reports of gross violation
of the BWC by the USSR promoted belief that such measures could
never in themselves be sufficient. This led, in 1995, to the opening
of negotiations for an agreement among the states parties on a legally
binding instrument that would strengthen the treaty by establishing
verification or other compliance-promoting procedures. These negotiations
collapsed in 2001 at the Fifth Review Conference. In their place, the so-called BWC New or Intersessional
Process ran during 2003-2005 and following assessment during the Sixth Review Conference in 2006 was renewed for 2007-2010.
Third, there
are the particular provisions of the 1977 EnMod
Convention -- the Convention on the Prohibition of Military
or Any Other Hostile Use of Environmental Modification Techniques
-- which prohibit warfare with antiplant chemicals "having widespread,
long-lasting or severe effects". This treaty entered into force
in 1978, but is at present subscribed to by less than a majority
of the world's states. Among the permanent members of the UN Security
Council, only France is a non-party.
Fourth is the
empowerment of the Secretary-General of the United Nations to investigate
allegations of the use of CBW weapons. The absence of international
machinery for investigating reports of germ warfare, especially
those heard during the Korean War, was what first precipitated intergovernmental
attention to CBW during the early years of the East-West Cold War.
What the machinery might comprise again became prominent in international
fora during the late 1970s, when bizarre reports of CBW - "yellow
rain" -- began to emanate from Laos and neighbouring regions, causing
the administration of President Carter in the United States to seek
the assistance of the international scientific community in an effort
to clarify the reports. The UN General Assembly did the same in
response to more vigorous public diplomacy by the administration
of President Reagan shortly afterwards. Several UN investigations
of alleged use of CBW weapons were mounted during the 1980s and
early 1990s, initially, and inconclusively, in regard to the "yellow
rain", and then during the Iran-Iraq war, when the Secretary-General
conclusively verified Iraqi resort to mustard gas, and later in
Mozambique and Azerbaijan, where his investigators reported non-verification
of the alleged chemical-warfare episodes on which evidence had been
presented. A key element in the empowerment of the Secretary-General
was the conference of January 1989 convened in Paris by the government
of France, during which 149 states formally reaffirmed their commitment
to the 1925
Geneva Protocol.
Finally there
is the 1993 Chemical Weapons Convention,
which entered into force in April 1997. This, like the 1972 biological
treaty, originated in intergovernmental talks on CBW that commenced
in 1968. It is a full-blown disarmament cum antiproliferation treaty
directed against all weapons which rely for their effects upon the
toxicity of chemicals towards human beings or other animals. It
prohibits development, production and stockpiling of any such weapons,
or assistance in acquiring them, and obliges parties to the treaty
not only to institute domestic compliance-assuring measures, including
penal legislation, but also to participate in a verification system
operated by an international agency based in The Hague, the Organization
for the Prohibition of Chemical Weapons (OPCW).
The treaty further extends the 1925
Geneva Protocol by including among its provisions an express
prohibition of any use of toxic chemical weapons, including retaliatory
use. The large majority of the world's states have joined the treaty,
with the exception of some of the small island states, North Korea,
and several of the states in the Arab-Israeli confrontation. Experience
gained from negotiation of the 1993 Convention, and now from its
implementation, inevitably influences efforts to strengthen the
Biological Weapons Convention. Some
see the 1993 Convention, especially its features of nondiscriminacy,
penetration of private industry, and intrusive international verification,
as the makings of an international regime for the control or suppression
of all types of weapon of mass destruction, including nuclear weapons.
HSP work continues
to be directed towards the implementation and enhancement of this
regime. The current HSP
initiative seeks to introduce a concept of individual responsibility
into a regime in which the primary actors are otherwise states,
not persons who can be held accountable. Individual responsibility
does currently exist under the regime, but only to a very limited
extent. The Statute of the International Criminal Tribunal for the
Former Yugoslavia 1993 (as amended) confers on the Tribunal jurisdiction
over the war crime of torture or inhuman treatment, including biological
experiments. It also provides the Tribunal with, as a violation
of the laws or customs of war, jurisdiction over the employment
of poisonous weapons or other weapons calculated to cause unnecessary
suffering. The Rome Statute of the International Criminal Court
1998 confers upon the International Criminal Court power to exercise
jurisdiction over the war crimes of employing poison or poisoned
weapons; and employing asphyxiating, poisonous or other gases, and
all analogous liquids, materials or devices. These provisions, however,
are limited in their extent and do not provide authority to be used
as a basis for prosecutions under national jurisdictions. Furthermore,
they only relate to violations of humanitarian law, i.e. where perpetrated
in the theatre of war of an international armed conflict. The idea
in the HSP
initiative is to extend international criminal law by means
of a new multilateral treaty so that armament for chemical or biological
warfare becomes an offence over which, as more states join the treaty,
an increasingly universal jurisdiction is created. The extent of
the offences under the proposed treaty mirror the obligations of
states under the current CBW regime; e.g. possession and transfer
of a chemical or biological weapon would entail individual criminal
responsibility.
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