No humanitarian justification for biological weapons
On 11 January Digital Journal, an online publication touching upon current events and with a penchant for science and technology affairs, published an Op-Ed by Megan Hamilton, an animal and nature-loving journalist based in Costa Rica, on Technology and the art of modern warfare. The piece is worrying enough for all the new technologies under consideration: fast-firing guns that could be deployed on satellites, direction-changing bullets, laser guns to knock out enemy drones, and so on.
The item that caught my attention was a discussion about a project once run by US Defense Advanced Research Projects Agency (DARPA) that turned insects into surveillance cyborgs (See also the Gizmodo blog). As Hamilton described it:
How? Through the HI-MEMS, or Hybrid Insect Micro-Electrical-Mechanical System concept. Electrical circuits are implanted in bugs while they are in the pupa stage. Once they become adults, signals sent through radio waves trigger the circuits, meaning that the insect is now remote-controlled. Surveillance equipment is attached, meaning these bugs are now invaluable and undetectable tools for battlefield exploration.
DARPA cancelled the project. Hamilton, however, explored the topic of entomological warfare further with Jeffrey Lockwood, author of Six-Legged Soldiers: Using Insects as Weapons of War (Oxford University Press, 2010). It reveals interesting insights. For instance, technology has not yet been able to develop a drone the size of an insect—an entomopter—because of the size needed for an on-board energy source.
Once past the technological fascination of this type of weapon design for warfare or intelligence gathering, Hamilton pressed Lockwood on the morality of such projects and human and animal rights. Here things do get hairy.
Morality of entomological warfare
Lockwood took a kind of long-winded approach to answering the question. First, he mentioned the standards set by ‘just war theory’. Under jus in bello one imagines that formally prohibited weapons would be banned in warfare. He is generally correct when positing:
And then, deploying a weapon system of creatures to inflict harm on other humans surely constitutes a form of biological warfare (although international law is surprisingly vague on insects—microbes are quite another matter).
But then he wondered if biological warfare is necessarily wrong. He referred to the scenario of a debilitating but not deadly disease being transmitted by mosquitoes to enemy combatants such that it weakens the opposing forces and the goal of the attack can be achieved with considerably less loss of human life than would be the case with conventional weapons. He continued:
Of course, this supposes that one has adopted a consequentialist (probably utilitarian) ethics in which all that matters is the outcome. Such an ethical system might well conflict with the decisions made using a deontological approach in which duties/rights provide the moral constraints (rather than outcomes). So to return to your question, we might violate the rights of humans or other creatures (most often thought to be sentient which then raises the questions of whether insects can suffer—I think so, but many would disagree) by using the entomological weapons even if these arms reduced human deaths relative to other tactics.
[I assume that the passages between parentheses in the above quotes are Hamilton’s asides.]
The interview passage mixes up a few aspects of constraining biological warfare, namely the use of pathogens as a method of warfare, the deployment of insect vectors to propagate the disease agent, and the resort to insects in combat.
Yes, biological warfare is necessarily wrong
On the first issue whether all biological warfare is necessarily wrong, the answer is an unambiguous ‘yes’. The 1972 Biological and Toxin Weapons Convention (BTWC) contains no criteria of lethality or incapacitation to prohibit the development, production, stockpiling or any other form of acquiring microbial or other biological agents. This ban is absolute and therefore accepts no exceptions. Indeed, according to Article I, para. 1 of the BTWC the retention of disease agents is only justified for prophylactic, protective or other peaceful purposes. And then only if the nature or volume of the agent in possession conforms to those purposes.
This principle is known as the General Purpose Criterion. It emerged during technical discussions in the late 1920s and early 1930s in preparation of the disarmament conference due to start in 1933 as a way to address the dual-use problem, capture future scientific discoveries and technological developments, and frame a definition of chemical and biological weapons that does not allow for any exception. A criterion such as lethality was explicitly rejected, because the then proposed definition for chemical weapons had to capture irritants and incapacitants, such as riot control agents. Both the BTWC and the 1993 Chemical Weapons Convention have the General Purpose Criterion at the heart of their respective prohibitions.
While it is true that the BTWC does not explicitly refer to the use of biological weapons, it makes explicit reference to the 1925 Geneva Protocol banning the use of both chemical and biological modes of warfare. Moreover, at the Fourth Review Conference in 1996, the states parties to the BTWC explicitly recorded their understanding that the comprehensive prohibition on biological weapons in Article I covers their use too.
So, yes, all biological warfare is necessarily wrong, even if certain modes of pathogen use may appear more humane on the surface.
Yes, the BTWC bans the use of insects to spread disease
The second issue raised in the interview concerns the use of insects. In the past, insects have been both considered and used as vectors to spread disease. For instance, during the Second World War Japan notoriously deployed infected fleas to provoke plague epidemics in China. Allied Powers too investigated the option.
Again the BTWC’s prohibition is explicit. Article I, para. 2 proscribes the development, acquisition by any means and possession of weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict.
So, yes, developing, cultivating or possessing insect vectors with the intent of having them deliver a pathogen is proscribed. No exceptions allowed.
In my opinion, although I am not aware of any legal expert ever having made that point explicitly, the use of insects with the intent to have them sting or bite humans or animals would also be prohibited under the BTWC as the insects would almost invariable inject some kind of poison—a toxin—into the victim.
But does the BTWC ban the use of insects?
The third question whether the use of insects in more generic ways is a proscribed mode of warfare is more ambiguous. The BTWC does not mention insects per se. Biological agents cover human, animal and plant diseases. Certain insects attack plants and may destroy agricultural crops. Again, in the past belligerents have not shied away from deploying them to harm the enemy in both open and covert warfare operations. Psychologically, agricultural warfare lies close to biological warfare. Thus, for example, Protocol III (and Annexes) on the Control of Armaments of 23 October 1954 to the Treaty of Economic, Social, and Cultural Collaboration and Collective Self-defence (also known as the Brussels Treaty) of 17 March 1948 defined biological weapons as follows [emphases added]:
(a) A biological weapon is defined as any equipment or apparatus expressly designed to use, for military purposes, harmful insects or other living or dead organisms, or their toxic products.
(b) […], insects, organisms and their toxic products of such nature and in such amounts as to make them capable of being used in the equipment or apparatus referred to in (a) shall be deemed to be included in this definition.
(c) Such equipment or apparatus and such quantities of the insects, organisms and their toxic products as are referred to in paragraphs (a) and (b) which do not exceed peaceful civilian requirements shall be deemed to be excluded from the definition of biological weapons.
The protocols to the Brussels Treaty allowed Germany and Italy to join the Western European Union, which in turn paved the way to their NATO membership.
Would the states parties to the BTWC consider an allegation of insect use as a possible violation of the convention? Actually, yes. They did so in 1997.
As I summarised developments in the 1998 and 1999 editions of the Yearbook published by the Stockholm International Peace Research Institute (SIPRI), on 30 June 1997 Cuba submitted a request to Russia, one of the three co-depositories of the BTWC, to convene a formal consultative meeting to investigate an alleged US attack with BW agents in October 1996.
That was the first time since the entry into force of the BTWC in 1975 that a state party formally requested the international community to investigate a breach of the convention. Cuba did not lodge a complaint with the UN Security Council under Article VI of the BTWC but invoked a procedure to strengthen the implementation of Article V adopted by the Third Review Conference of the BTWC in 1991. According to this procedure, the formal consultative meeting must be preceded by bilateral or other consultations among the states involved in the dispute. Following the submission of the request, the depositories of the BTWC must convene the formal consultative meeting within 60 days of the receipt of the request.
According to the allegation, a US anti-narcotics fumigation plane flying from Florida to Grand Cayman crossed Cuba with Cuban authorization on 21 October 1996 and was observed by a Cuban civilian aircraft to spray unknown substances intermittently. On 18 December the first signs of a plague with Thrips palmi karay, a minute insect belonging to the order of Thysanoptera which are plant eaters and may transmit virus diseases of plants, appeared. While Thysanoptera live wherever plants are, Cuba stated that this particular insect was indigenous to Asia and exotic to Cuban territory, although since 1985 its presence has been noted on several Caribbean islands. By January 1997 other parts of Cuba had also been affected and the insects continued to spread throughout the island in the spring and affected many crops. In October, the Cuban government reported that 20,000 tonnes of produce, including 18,000 tonnes of potatoes, had been lost to Thrips.
Following a request in December 1996 to clarify the incident, the US stated on 12 February 1997 that the pilot had noted the Cuban civilian aircraft but was unsure whether he had been seen and therefore used the smoke generator of his aircraft to secure a positive visual contact ‘following prudent and safe aviation procedures’. The US further added that the tanks for the aerosol sprinkling system had actually been used to carry fuel in view of the long-distance flight. On 28 April, in a note to the UN Secretary-General, Cuba formally accused the United States of biological warfare. The US State Department rejected the Cuban accusations and made its own version of events public on 6 May. Cuban officials discarded the statement for its ‘lack of seriousness’. In a second letter dated 27 June to the UN Secretary-General Cuba formally rejected the US explanations: (a) the regulations of the International Civil Aviation Organization do not mention the use of smoke generators to signal the position of aircraft in flight and such use is not a known practice except for aerobatics; (b) crop duster planes manufactured and operated all over the world are not equipped with smoke generators; and (c) the plane had no requirement to carry extra fuel in the herbicide tank since its normal fuel load sufficed amply for the flight. Even if some extra fuel had been carried in the tank, then it was technically feasible to fill it with another substance too, allowing for initial consumption of fuel and then for spraying.
The formal consultative meeting began in Geneva on 25 August in closed session, but failed to resolve Cuba’s claim after three days of talks, because, according to the chair, British Ambassador Ian Soutar, ‘it was not possible to draw a direct causal link’ between the overflight and the outbreak. As the Thrips palmi occurs in Haiti, the Dominican Republic, Jamaica and in Florida, the main unresolved question is whether the insect could have been introduced to the Cuba in another way. The meeting mandated Ambassador Soutar to further investigate the allegation and prepare a report by 31 December 1997.
His report, delivered on 15 December 1997, concluded that ‘due inter alia to the technical complexity of the subject and to passage of time, it has not proved possible to reach a definitive conclusion with regard to the concerns raised by the Government of Cuba’. Twelve states parties to the BTWC had submitted comments, which were annexed to the report. All agreed that insufficient evidence was available to establish a causal link between the outbreak of Thrips palmi in Cuba in December 1996 and the overflight of the US plane two months earlier. The report noted that throughout the process general agreement existed that the requirements of Article V of the BTWC and the consultative process established by the 3rd Review Conference had ‘been fulfilled in an impartial and transparent manner’.
The interesting thing is that while the BTWC states parties decided to take up the Cuban allegation of entomological warfare, in their conclusions they carefully avoided naming the incident a case of biological warfare. As Nicholas Sims of the London School of Economics and Political Science noted in his SIPRI book The Evolution of Biological Disarmament (Oxford University Press, 2001),
Denmark and the Netherlands expressed doubt, which other parties are known to have shared, over the question of whether insects or other pests such as Thrips palmi fall within the scope of the BTWC. Both states included statements that their participation in the consultative process was without prejudice to their national positions on this question.
Cuba, having raised the matter under the BTWC, made it politically difficult for the United States to invoke a legalistic argument to avoid addressing the concern. The documents of the consultative meetings have not been published—Sims does quote some extracts from them—and there is no indication that the incident was precedent-setting in the minds of the states that participated in the exercise.
So to answer the question whether the BTWC bans the use of insects other than for the delivery of a pathogen or toxin, one can only note equivocalness: not prima facie, but in practice some scope may exist to lodge a complaint about malicious use of insect vectors against agriculture with one of the three BTWC depositary states.
To come back to the Jeffrey Lockwood’s suggestion that not all biological warfare may necessarily be wrong, my answer is unequivocally: WRONG!
International law, in the form of the BTWC, allows no exceptions on the use of pathogens or toxins as weapons of war. There have been and still are important reasons why lethality or other humanitarian considerations were discarded as criteria for defining biological and toxin weapons. Any suggestion to the contrary might open up a loopholes that proponents of so-called non-lethal warfare would be all to happy to exploit today and tomorrow.
Thank you, Jean Pascal, for an interesting contribution on the scope of prohibitions in the BWC. It was particularly thoughtful of you to present on the hostile use of insects as pests in contrast to their more established role as vectors of infectious diseases in biological warfare.
One additional aspect that may warrant further exploration and discussion is the use of biological and toxin agents for law enforcement in the context of the BWC.
You rightly say that the BWC has no criteria of lethality or incapacitation to prohibit the agents and that the ban is absolute and accepts no exceptions and that any suggestion to the contrary might open up loopholes that proponents of the so-called non-lethal warfare would be happy to exploit.
It may be worthwhile to consider two real life examples that either fall under the non-prohibited “other peaceful purposes” of the BWC, or they do not.
1. The use of pepper spray for riot control/law enforcement/self-defence.
If toxins are toxic substances of biological origin and/or their synthetic analogues, pepper spray is a toxin-based product. It may not be covered by prophylactic or protective purposes in Article I of the BWC, so the only opportunity to justify that category of use of this toxin is under “other peaceful purposes”. Pepper spray is widely utilised around the world for the mentioned purposes and such use is not challenged unless inconsistent with safety regulations.
If there is acceptance that one non-lethal toxin may be used for law enforcement under the BWC, such acceptance may logically extend to other similar agents. It is a matter of principle: either such use is allowed or it is prohibited. It appears that there is a tacit acceptance of the former. Further complicating the matter is the fact that the use of toxins, such as pepper spray, as riot control agents is not prohibited by the Chemical Weapons Convention. Potentially, we may have a situation of discrepancy in the application and interpretation of two disarmament treaties covering the same subject matter. Such a situation may be blissfully ignored in the BWC like almost everything else does, but the questions would remain.
2. Another interesting point is the use of bio-pesticides (such as micro-organisms harmful to plants) in law enforcement, especially extraterritorially.
Scenarios envisaging aerial application of bio-pesticides include eradication of poppy and coca grown for illicit purposes. Since bio-pesticides fall under the definition of microbial agents in Article I of the BWC and such use may not be consistent with prophylactic and protective purposes allowed therein, it should be explored under “other peaceful purposes”. This, in turn, brings us back again to the problem of law enforcement in the context of the BWC.
Vladimir, thank you very much for your comments and additions.
The two points you raise have not escaped my attention. With respect to pepper spray, I share your concern. However, whenever I raise the matter with government officials or representatives of civil society, people tend to refer to the permissibility of the toxin as a law enforcement agent under the CWC. Personally I find this problematic because it suggests that the CWC exceeds the BTWC and therefore (implicitly) modifies the scope of the ban in the BTWC.
I raised the matter in a blog posting of October 2014 entitled ‘New naval anti-piracy tactics – pepper spray and “domestic” riot control‘ and again in another one of April 2015 entitled ‘On suicide, riot control and ‘other peaceful purposes’ under the BTWC‘.
The question of bio-pesticides is not new either. For example, Fusarium fungi (affecting cannabis and coca) and Pleospora fungi (affecting poppy plants) were developed as potential biocontrol agents. The United Nations Drug Control Programme (UNDCP) had to pull out of the development programme once it became clear that there might be a violation of the BTWC. (For more background, see the BioWeapons Report published in 2004 by the BioWeapons Prevention Project.)
With terrorism high on the security agenda, so-called non-lethal agents appear attactive for counter-terrorism operations (hostage situations, etc.) and are increasingly controversial in the interface between the Biological and Chemical Weapons Conventions. Unfortunately, the debate appears mostly focussed on the law enforcement provision in the CWC and less on the impact of such agents on the BTWC.
I agree, these two issues are anything but new.
The CWC, as it was constituted, cannot be undone. The purposes not prohibited list including the law enforcement provision are there to stay. The OPCW has the interface to deal with the challenges that have already emerged out of there as well as with those that may at this time be beyond the horizon.
Unlike that, the BWC is not equipped at all to face any of the difficult tasks relevant to its object and purpose. In terms of the fashionable convergence topic, I doubt that people at the OPCW will even care to recall the BWC’s angle in their deliberations let alone try to harmonise and co-ordinate with it. Who should they work with at the BWC? An empty place? A dark void of nothingness?
The BWC’s regime is so weak since it lacks any props at the international level that others look at it either with surprise (what the heck is it?) or with pity. We all know who to thank for that.
This year there will be an opportunity to begin mending that inshallah.