(Speaking Points at the “50th anniversary of the entry into force of the Biological Weapons Convention” event held at the Palais des Nations, Geneva, 26 March 2025)

Before the Geneva Protocol

• Evolution of the ‘poison concept’
  • Starting in the early 19th century, semantic separation of disease from the poison concept because of evolving medical practice and growing acceptance of the germ theory.
  • Semantic specialisation between poison (toxic substances from nature) and asphyxiating and deleterious gases (products from science and industrialisation).
• 1899 Hague Peace Conference
  • Semantic bifurcation between poison and asphyxiating gases is a reality with legal consequences.
    • Prohibition of the use of poison and poised arms in Convention (IV) respecting the Laws and Customs of War on Land is accepted without any discussion (Article 23).
    • Declaration (VI, 2) concerning Asphyxiating Gases is the subject of much debate and not accepted by two participating states because these weapons had not yet been used in war and could prove decisive and more humane.
  • 1919 Versailles Treaty (Peace treaty with Germany; similar treaties concluded with the other Central Powers)
    • Article 171: Introduction of the 3-step definition – agent, delivery system, ancillary (specialised) equipment – of a chemical weapon (CW).
    • This definition influenced the phrasing of the prohibition (on use) in the 1925 Geneva Protocol.
    • The 3-step approach can still be found in the definition of a biological weapon (BW) in Article I of the Biological and Toxin Weapons Convention (BTWC) and of a CW in Article II, 1 of the Chemical Weapons Convention (CWC).
    • The 3-step approach is also used in the basic definition of a nuclear weapon in most treaties on a regional nuclear weapon-free zone.

Negotiation of the 1925 Geneva Protocol

• The League of Nations convened the Conference for the Supervision of the International Trade in Arms and Ammunition and in Implements of War in Geneva (4 May – 17 June 1925).
  • The United States proposed an amendment to the draft treaty to apply the arms trade restrictions to asphyxiating gases too. Poland follows up with the proposal to also extend the suggested restrictions on asphyxiating gases to bacterial means of warfare.
• By its nature, the Arms Traffic Conference focussed on weapon technologies, not on their moral or humanitarian implications of use on the battlefield.
  • Delegates were confronted with the dual-use characteristics of the toxic substances they wished to regulate: how not to hamper the legitimate trade in poisonous chemicals (used during the First World War) for industrial, agricultural and other peaceful commercial purposes?
  • They also concluded that no international rule forbade asphyxiating or deleterious gases in combat, without which they could not prohibit trade in CW.
• The delegates decided to craft a protocol to establish a global norm against CW use, which would be open for signing to all League members and other states.
  • Because the Conference had dropped the US amendment to the draft Arms Traffic Convention, the Polish proposal had disappeared from the considerations too.
  • In the final stages of the deliberations, Poland (successfully) insisted on adding bacteriological weapons to the draft Geneva Protocol.

Impact of the Geneva Protocol

• The Geneva Protocol is still an active treaty. 146 states are party to it.
• The Geneva Protocol gradually pushed BW and CW to the margins of military doctrine, thus preparing both arms categories for disarmament (rather than arms control or non-proliferation).
• Due to the focus on weapon technology rather than the consequences of use, the delegates had to confront the dual-use problem. Investigation of the question in preparation for the World Disarmament Conference (held from February 1932 to November 1934) resulted in the solution of the General Purpose Criterion, which is at the heart of the BW and CW definitions in the BTWC and the CWC. The British draft disarmament convention of March 1933 already contained an early version of the General Purpose Criterion.

Legacy of the Geneva Protocol

• The Geneva Protocol was norm-setting, leading to UN General Assembly resolutions in the late 1960s that prepared the ground for the BTWC negotiations.
• It is the legal foundation for the UN Secretary-General’s Investigative Mechanism.
• The 1998 Rome Statute establishing the International Criminal Court draws on the language in the Geneva Protocol to declare ‘Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices’ a war crime. (A similar provision on BW was added later following the adoption of an amendment proposed by Belgium. Its language draws on elements used in the BTWC.)

Action points

• Science and technology (S&T) developments were one of the key drivers that led to the Protocol and insertion of BW. The challenge for the BTWC remains today, and an S&T mechanism is urgently needed.
• Verification and investigation are today two unresolved problems that already bedevilled the League’s efforts to control the arms trade. They led to the Protocol being separated from the arms traffic convention under negotiation. There is a clear need for a BTWC verification concept relevant to today’s challenges.
• Two crucial elements that came to the fore during the deliberations of armaments reductions in the League were (1) the need for security guarantees and mutual assistance to make weapon control possible and (2) the demand from less industrialised countries to have the right of access to goods and materials in support of their national security and economic development.[1] The League’s failure to resolve these questions meant that the Geneva Protocol was the only weapon control agreement it achieved in the two-and-a-half decades of its existence. These matters are today reflected in the discussions on BTWC Articles VII (on emergency assistance) and X (on international cooperation and exchanges for peaceful purposes).

[1].Given the arms trade focus of the 1925 Conference, smaller countries were concerned that states with a developed chemical industrial base could produce large CW volumes whereas the proposed treaty would deny them access to those weapons for their defence. Under the BTWC and CWC, this type of reasoning is no longer acceptable and is supported by the comprehensive prohibition on the production and possession of any quantity of BW or CW. The latter fundamental disarmament obligation did not exist in the 1920s.

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