The Trench

Biological

An anthrax attack against cattle: Would international emergency assistance be forthcoming?

Last Friday the Fondation pour la recherche stratégique (Paris) presented its new report on Article VII of the Biological and Toxin Weapons Convention (BTWC) during a side event of the Meeting of States Parties (3–6 December). The publication summarises the third tabletop exercise (TTX) to better understand how a party may request international assistance under Article VII if it has been exposed to a danger resulting from a treaty violation. Such a danger may include the use or threat of use of biological weapons (BW) by another state party.

Presenting the report on the 3rd tabletop exercise (UNOG, 6 December 2019)

The first (Geneva, November 2016) and second (Lomé, May 2019) TTXs achieved better understanding of the elements required to trigger Article VII and the consequences such action may have on the organisation of international assistance. They also put into sharper relief certain questions BTWC states parties will have to address even before the first item of assistance is shipped to the disaster area.

The first two exercises involved a contagious human pathogen presumably introduced deliberately in an area of tension and low-level armed conflict. In the final stage of the scenario the victim state invoked Article VII, which, as it turned out, had important consequences for the relief operations already underway for some time. Both workshops also revealed a deep concern among participants about how the provision might inadvertently escalate an ongoing conflict.

The third TTX (Geneva, August 2019) introduced two significant changes to that basic plot. It tested whether, in the minds of participants, Article VII would apply to an intentional release of a zoonotic disease agent (anthrax bacteria) rather than a highly contagious, fast spreading human pathogen. The goal was to examine the concept of ‘crisis’: would a biological attack against cattle that resulted in few human casualties (that is, relative to major disease outbreaks such as the Ebola crises in West and Central Africa) also lead to an international emergency response under Article VII?

It also sought to understand whether the insertion of a round of diplomatic consultations into the Article VII process might mitigate, if not avert some of the unintended consequences observed during the previous two exercises. To that end, the third stage of the scenario did not force the activation of Article VII upon participants.

The workshop benefited from the participation of representatives from international organisations, notably Food and Agricultural Organisation (FAO), Interpol, United Nations Office for the Coordination of Humanitarian Affairs (UNOCHA), World Health Organisation (WHO) and World Organisation for Animal Health (OIE). The representatives were not assigned to a specific country played in the scenario but moved among the different breakout groups to offer advise on how their respective organisations might contribute to certain facets of an international response to a deliberate disease outbreak and to point out limitations on actions as a consequence of their respective mandates.

The third TTX again limited itself to the phase between the detection of an unusual disease outbreak and the point when the UN Security Council (UNSC) might have to act. The mobilisation and organisation of the delivery of assistance following a UNSC decision were consequently not part of the exercise. The new scenario drew on the conclusions from the previous TTXs and did not aim to re-enact certain aspects. Participants were briefed on the outcomes of the workshops in November 2016 and May 2019.

Decision-making in the face of many uncertainties

Contrary to the previous TTXs, the scenario and instructions for the breakout groups deliberately left out indicators about the size of the anthrax outbreak. Given that the plot unfolded in three discrete stages, it also remained silent on the speed of developments. Both omissions intended to test the concept of ‘crisis’ too.

Participants noted this lack of adequate and timely information, the absence of adequate communication channels, problems with information sharing, all of which complicated the efforts at crisis management. The way in which the scenario had been constructed reinforced the problems too.

The TTX design accepted two possible pathways. Either participants would ‘conduct’ their own epidemiological investigation and thus define the nature of the outbreak, or they would not, in which case decision-making would have to take much uncertainty into account. The latter option was in line with the general background description that the outbreaks happened in a remote, conflict-ridden part of the victim country where most of the health infrastructure was destroyed or neglected after staff had left.

The scenario did include some qualitative hints about the evolution of the crisis, such as reports of cases in a neighbouring country, the emergence of some cases of human inhalational anthrax following the burning of carcasses, the spread of bacteria via scavenging birds, and so on. As it turned out, the victim country was unable to scope the outbreak leaving its crisis committee as well as other governments in uncertainty about developments. It did manage to retrieve a sample of the bacteria and transfer it to the reference laboratory in a third party actively engaged in regional conflict mediation, again a qualitative rather than quantitative piece of information.

The dearth of quantitative information, the uncertainties about speed and range of the epidemic, and the demands to have the allegation of a biological attack confirmed contributed significantly to the reluctance to trigger Article VII. Besides those uncertainties, participants also felt that Article VII limited their potential courses of action as a consequence of possible conflict escalation. They also sensed that the country triggering the provision would likely lose control over the decision-making process as other actors such as the UNSC could step in.

Combined, the elements contributed to the perceived utility of (regional) multilateral consultations to resolve the matter of alleged BW use and prioritise emergency assistance.

On the use of Article V in the scenario

The previous two TTXs had revealed a concern among participants about the lack of clear direction on how to trigger Article VII. Given that any party to the BTWC has the right to raise a treaty compliance issue directly with the UNSC or request the UN Secretary-General (UNSG) to investigate alleged BW use, the community of states parties has no control over how an Article VII request might unfold and impact on emergency relief operations already underway. Whereas the first TTX mentioned possible roles for Articles V and VI in the process of requesting emergency assistance, at the second TTX in Lomé participants dismissed Article VI (because of UNSC involvement) and only considered the option of a consultative meeting under Article V before the transmission of an Article VII request to the UNSC. While not rejecting the idea, they expressed reservations about the time lapse to prepare and hold such meeting and the resulting delays for delivering urgent assistance to the stricken region.

The third TTX looked explicitly at how Article V might contribute to the Article VII process. The text reads as follows:

Article V

The States Parties to this Convention undertake to consult one another and to co-operate in solving any problems which may arise in relation to the objective of, or in the application of the provisions of, the Convention. Consultation and co-operation pursuant to this Article may also be undertaken through appropriate international procedures within the framework of the United Nations and in accordance with its Charter.

The procedure for convening such a consultative meeting as outlined in the final document of the Third Review Conference (page 15) confirms the risk of a major time lag. A state party has to address its request to the three depositary states who will then convene an informal meeting within 30 days to discuss the arrangements for the formal meeting. That formal meeting must be held within 60 days after having received the request. Preparation of the consultation report and its adoption may require several more months. Without any additional clarification at a future review conference, the language of Article V in combination with request procedure described above seem to indicate that such a consultative meeting cannot be convened on a regional or subregional level.

The scenario therefore drew on another paragraph in the final report of the Third Review Conference, namely

A formal consultative meeting could be preceded by bilateral or other consultations by agreement among those States Parties involved in the problems which had arisen.

Thus, the country in the forefront of conflict resolution issued urgent invitations to the other countries on the continent referring to rather than invoking Article V after it became clear that the victim state was on the verge of sending an Article VII request to the UNSC.

To allow this plot to fully unfold, the third stage of scenario did not dictate the triggering of Article VII as had been the case previously. Instead, the simulated countries each had to prepare and then engage in negotiations to explore whether alternative courses of action acceptable to all might be possible given the circumstance of a major treaty breach.

Following the outcome of the consultative round the victim state did not transmit the letter to the UNSC. In doing so, it accepted the mediator’s proposal emphasising assistance and diplomatic engagement to bring the conflict to an end. The willingness by the government of the country most closely allied with the alleged perpetrator to contribute to the assistance operations and actively engage with it in pursuit of a negotiated resolution of the conflict also helped to convince the victim state. The latter country thus chose not to formally accuse the alleged perpetrator. Nevertheless, it continued to believe that there had been a major breach of the BTWC and that its neighbour was responsible for the outbreak. It also indicated that it might still call out the country at a later stage if the proposed efforts were to falter.

Even though the scenario of the third TTX bore many resemblances with those used in the previous exercises, it also had important differences. First, it stepped away from a mass casualty epidemic scenario and raised the question whether Article VII also bears on a deliberate incident involving a zoonotic pathogen such as anthrax bacteria. Their spread is slow and given that their release targeted cattle, human fatalities and other casualties remained fairly low. None of the participants argued that Article VII was of no relevancy to the contingency.

Second, the inclusion of a consultative round in the third TTX yielded significantly different outcomes. Because participants were able to consider alternatives to addressing an Article VII request to the UNSC, they also came to realise how the provision limited options to resolve the crisis (in its many facets). Efforts to de-escalate the conflict to maximise the opportunities to address the veterinary and health crises became a major preoccupation of the participants.

Whether an Article V-inspired consultative round in a procedure to activate Article VII would have generated a similar outcome if a large-scale human epidemic had again been central to the scenario is unclear. Nevertheless, it seems that in preparing for the ninth BTWC review conference in 2021 state parties should further explore and test the route. Right now, interpreting Article VII and inserting relevant agreements and common understandings into the final report look like the only possible options to ensure state party involvement in a major crisis without amending the treaty.

Evidential support and confirmation of findings

All three TTXs came across the demand for supporting evidence when triggering Article VII. The BTWC, however, has no institutional framework to launch an investigation of alleged use. Available mechanisms – the UNSG’s mechanism, the Interpol resources, the procedures run by the FAO, OIE or WHO – all exist outside the disarmament treaty.

It is also not clear whether collected data can be shared among partner organisations or with BTWC states parties. Indeed, many restrictions or conditions may apply (including the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (ABS) to the Convention on Biological Diversity). The demand for solid evidential quality will likely be high. There exists no laboratory network to support the BTWC (similar to the one under development for the UNSG’s mechanism or available to the Organisation for the Prohibition of Chemical Weapons). As the third TTX illustrated, even the findings of a highly qualified national reference laboratory in a BTWC state party had to be validated by another, preferably international and neutral institution.

A balance may therefore have to be struck between the need for supporting evidence and the demands for speedy emergency assistance. Insistence on a high evidential standard might delay or slow down relief operations.

International organisations

Several of the international organisations attending the TTX noted that activation of Article VII might ‘securitise’ their work in the field in contravention of their mandate to provide emergency assistance or investigate outbreaks. A factual investigation that may identify the perpetrator(s) may also compromise their neutrality relative to warring parties in a conflict zone.

When considering Article VII at review conferences, BTWC states parties have repeatedly referred to such organisations to organise and provide emergency assistance. Matters may prove more complicated in practice. Efforts should be initiated or expanded to involve all possible partners – BTWC states parties, international and non-governmental organisations, etc. – in discussions to better understand each other’s mandates, capabilities and limitations. International organisations in particular may have to develop an understanding of their mandate in light of possible requests under Article VII. Furthermore, communication channels between the BTWC community and other international bodies should be explored, arranged and tested. This applies in particular to the transmission of an emergency assistance request to an international organisation (which may all have their own unique requirements and modalities).

A biological attack against cattle does fall under Article VII, but…

The outbreak in the third TTX differed in nature and size compared to the earlier exercises. No participant claimed that Article VII is not applicable to zoonotic diseases or small-scale outbreaks that are the consequence of a violation of the BTWC provisions.

Given that humanitarian emergency responses are often discussed in relation to major outbreaks of human diseases (e.g. the Ebola outbreaks in West Africa and Congo), the TTX proved a useful reminder that Article VII also applies to smaller-scale deliberate incidents as well as ones involving animal and plant pathogens (both of which are covered by the BTWC). This underscores the relevancy of the provision in cases of armed conflict or terrorism. Several participants suggested that it was ultimately up to the victim state to decide whether and when to invoke the provision.

Notwithstanding the previous point, concrete and coordinated action in support of an Article VII request may depend on the scale of the outbreak. Presently no agreed definition or sets of criteria have been elaborated. Equally relevant is that international organisations may have certain thresholds before intervening, such as the standard for the WHO laid out in the International Health Regulations.

Less clear is still whether states parties would consider requests for emergency assistance for other types of events contrary to the BTWC obligations, such as an accidental release from an illicit BW research or production facility with cross-boundary implications.

Report

Jean Pascal Zanders, Ralf Trapp and Elisande Nexon, Report of the (Third) Tabletop Exercise (TTX) on the Implementation of Article VII of the Biological and Toxin Weapons Convention (BTWC) (Fondation pour la Recherche Stratégique, Paris, December 2019)

Earlier publications

Jean Pascal Zanders, Elisande Nexon and Ralf Trapp, Report of the (First) Tabletop Exercise (TTX) on the Implementation of Article VII of the Biological and Toxin Weapons Convention (BTWC) (Fondation pour la Recherche Stratégique: Paris, July 2017)

Jean Pascal Zanders, Ralf Trapp and Elisande Nexon, Report of the (Second) Tabletop Exercise (TTX) on the Implementation of Article VII of the Biological and Toxin Weapons Convention (BTWC) (Fondation pour la Recherche Stratégique, Paris, August 2019)

Jean Pascal Zanders, The Meaning of ‘Emergency Assistance’: Origins and negotiation of Article VII of the Biological and Toxin Weapons Convention (The Trench and the Fondation pour la recherche stratégique: Ferney-Voltaire and Paris, August 2018)

 

 

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