BioWeapons Prevention Project

Challenge investigations are the ultimate tool to deal with allegations of serious non-compliance with agreed international norms. The BWC has no challenge investigation mechanism. It only sets out in Article VI that states parties may lodge a complaint with the UN Security Council, if they find another state party acting in breach of the BWC, and that the UN Security Council may initiate an investigation. No further detail is provided.

BWC states parties worry about this lack of an investigation mechanism. Of the 29 states or groups of states taking the floor during the opening debate of the Meeting of States Parties in December 2010, eleven supported the development of a verification mechanism for the BWC – presumably this would include a challenge investigation mechanism – and ten more specifically mentioned the importance of the UN Secretary General investigation mechanism. The UN Secretary General mechanism for investigations into the alleged use of chemical and biological weapons dates back to 1982. It was used 12 times. All investigations related to chemical (including toxin) weapons. The last investigations took place in 1992.

Would it really be clever for the BWC Review Conference to focus a lot of attention on the issue of challenge investigations? Would it help significantly in supporting and strengthening the BWC? Or is the interest in the UN Secretary General mechanism due to the fact, that consensus in this area seems more likely than on other issues such as verification or Article X implementation?

I see two problems should BWC states parties put a strong focus on challenge investigations:

While I am convinced that an international capacity to investigate the alleged use of biological weapons (by state or non-state actors) is indispensable for a strong bioweapons control regime, I also believe that the existing UN Secretary General mechanism is comparatively well developed (it has recently been updated). The Review Conference should therefore focus on issues in greater need of attention and development.

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Scientific advances pertaining to manipulation of disease are severing the exclusive link between power and technology for mass violence. These advances in genomics, nanotechnology and other micro-sciences offer profound benefits for combating disease, environmental remediation and economic growth, but they also open ominous new capacities to intentionally inflict disease. Given the range of dual-use biotechnologies that could potentially be exploited for biological warfare purposes and the rapid expansion of national biodefense programs that could serve as a cover for offensive activities, there is an urgent need to develop new strategies for promoting compliance with the Biological and Toxin Weapons Convention (BWC) before the Seventh Review Conference convenes in December 2011.

Unfortunately, the task of verifying the BWC is exceedingly difficult for a number of reasons. First, the fact that biological pathogens and production equipment are “dual-use,” meaning that they can be used for either peaceful or hostile purposes, greatly complicates the task of distinguishing legitimate from prohibited activities. Second, although the BWC allows the development of defensive measures, the line between defensive and offensive work can be hard to define and often depends on an assessment of intent. Third, tens of thousands of civilian vaccine plants, industrial fermentation facilities, and legitimate biodefense centers around the world are potentially capable of producing significant quantities of biowarfare agents, making it extremely challenging to ferret out the small fraction of sites that are actually engaged in illicit activity. Finally, the highly intrusive inspections of commercial biotechnology plants that would be required to detect violations of the BWC could put at risk valuable proprietary information, such as genetically engineered microbes used to produce certain drugs and vaccines.

Therefore, traditional mechanisms for limiting state development of lethal capacities must be broadly supplemented with new techniques for early detection of malevolent schemes and effective preparedness against attacks. Equally as important, there must be institutional capacity to implement these techniques by working with international and regional organizations and with the private sector. In this endeavor, the Seventh Review Conference needs to implement a worldwide harmonized measures to secure and account for especially dangerous pathogens; strengthen national reporting obligations and international investigations of suspicious behavior; and implement a harmonized measures to improve disease surveillance.

Moreover, BWC-relevant developments should be assessed and discussed collectively, but this seldom happens. The Seventh Review Conference should set aside time for collective assessment of the science and technology papers submitted for the review, and needs to decide how best to organize regular collective assessment between review conferences. Science and technology review is written into the BWC (Article XII) but unless the Seventh Review Conference makes enough space for this task on its own and subsequent agendas it will continue to be neglected.

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The question raised in this discussion topic presupposes that there will, at least at this stage, not be a verification mechanism under the BWC. Before I take this as my starting point, I thought it might be useful to briefly reflect on this broader issue.

The arguments for and against a verification system under the BWC have been going around for many years. For a while, the very word “verification” was taboo in the BWC context. More recently, some countries have called for a return to the negotiation of some sort of a BWC verification protocol whilst others have cautioned against that. The arguments in this debate have not changed much over the years, despite a significant shift in the industrial landscape and advances in science and technology that pose new risks but also offer new opportunities for investigating suspicions of biological weapons acquisition and use.

Iris argues that challenge investigations are the ultimate tool to deal with allegations of serious non-compliance with agreed international norms, but then concludes that the existing UN Secretary General mechanism may be sufficient to address at least some of the verification-of-compliance concerns, and that the Review Conference should focus on issues in greater need of attention and development.

Nisreen argues that the dual-use nature of biological pathogens and production equipment greatly complicates the task of distinguishing legitimate from prohibited activities, that it is hard to identify the line between defensive and offensive work, and that the sheer number of civilian vaccine plants, industrial fermentation facilities and legitimate biodefense centers around the world makes it extremely challenging to ferret out facilities engaged in illicit activity.

If this particular discussion were about whether the BWC should have a routine verification system, Nisreen’s points needed to be addressed (in fact many of them have been discussed in another RevCon discussion topic of this Forum). One might note in passing that the situation with regard to chemical weapons disarmament—where routine inspection in chemical industry is today well established and generally regarded as working well, if perhaps in need of an update—is actually not that different: chemistry and chemicals manufacturing are dual-use, the intentions of chemical defence programmes are not always clear to an outside observer, and the number of chemical plants worldwide is vast and expanding. But there are of course key differences between CW and BW disarmament, both with regard to the industries concerned and, perhaps more importantly, the differences in the footprint of a break-out capability for a biological weapons programme if compared to a chemical weapons programme.

But no matter which direction the discussion of BWC verification takes, consideration of what sort of investigative capability the BWC Member States should have at their disposal to resolve non-compliance concerns is a separate matter. This is not a question of technical feasibility. UNSCOM and UNMOVIC have shown that successful investigation of bioweapons programmes is possible. But these were special circumstances and investigations of that kind require political will and cohesion in the international community that at least at this moment is lacking in the BWC context.

Iris makes the point that challenge inspections are never used, even when there are serious non-compliance concerns. I would agree but also point out that the very fact that the challenge inspection mechanism is part of the legal fabric of the CWC, and that it is institutionally supported by resource (inspectors, equipment and a network of laboratories) and procedures (albeit only used in routine circumstances and simulations), has a deterrence effect. But then, the OPCW maintains this stand-by capability as part of its overall verification capacity which is as yet lacking in the BWC.

Several observers have argued that bringing the UNSG mechanism closer together with the BWC processes would be a way of addressing at least some non-compliance concerns. As Iris points out, a draw-back would be that the mechanism was not set up to investigate alleged development, production and stockpiling of biological weapons. On the other hand, it is a multilateral tool that is both politically accepted and equipped with actual resources. The roster of experts and laboratories has recently been updated. Training has been provided to experts on the roster, and there is hope that this will continue. UNODA points out that extensive knowledge and capabilities in the areas of epidemiology and forensic science, munitions and delivery systems, emergency response, sample taking and analysis are available for investigations, and that a core team of experts trained to operate as a UN fact-finding team in conducting an investigation of alleged use of biological weapons does now exist. The mechanism may lack the daily routine of other verification systems that rely on standing arrangements for deploying inspection teams, but past experience has shown that it can be utilized.

On balance, it seems reasonable to suggest that the BWC should get more closely associated with the UNSG mechanism (including by further improving the cooperation between this mechanism and such specialised agencies as WHO, OIE and FAO, going beyond the Memorandum of Understanding already concluded between UNODA and WHO). That would leave the resolution of non-compliance concerns other than alleged BW use to the procedures foreseen under Article VI, involving the Security Council who, if it so decided, could initiate its own investigation and in this context request the Secretary General to make available the technical competence and resources he has put in place for the UNSG mechanism. This would be an Ad Hoc solution rather than an institutionalised investigation capacity, of course, but in a pragmatic sense it could work.

The question asked under this discussion topic, however, was “how” this should happen. At the legal and policy level, this is in the hands of the States Parties—they are the actors who can activate both the UNSG mechanism and procedures under Article VI (or decide not to do so). But where does that leave the ISU, does it have a role to play?

For a number of reasons, I cannot see an operational role for the ISU, with its present mandate and capacity, in the context of such investigative procedures (other than to facilitate, as may be necessary, certain communications among Member States as well as between them and the Security Council and/or the Secretary General). That would be very different were there an international implementation agency for the BWC. Should such an agency be set up at some future date, its relationship with the United Nations would have to be clearly defined, which would also include the way it would relate to the present UNSG mechanism. But short of such an agency, the lead in any BWC-related investigation has to be with the UN in New York, supported by WHO, OIE and FAO with technical and scientific expertise.

On the other hand, investigations of compliance concerns are only part of the story. Fact finding is not an end in itself, but the basis for decision making and action. Whilst the Security Council would be expected to take whatever action may be necessary in cases where international peace and security are at risk, the treaty members themselves have responsibilities under the BWC. These could for example relate to measures to be taken under Articles V or VII. In these areas, the ISU does have competence, and should have a mandate—which would require clearly defined liaison roles and information sharing procedures with the investigation mechanism, whether initiated under the UNSG mechanism or requested otherwise by the Security Council.

What does this mean for the Seventh Review Conference? I would suggest it calls for a common understanding of the BWC Member States to formally associate the UNSG investigation mechanism with the provisions under Article VI of the BWC, and that they task the ISU to make whatever practical arrangements would be needed to make this work, involving UNODA and the relevant specialised agencies (WHO, OIE, FAO) with regard to information sharing and communications.

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In her paper, Iris Hunger has argued that the 7th BWC Review Conference should not invest too much time and energy in discussing the UN Secretary General’s (UNSG) investigation mechanism but should instead focus on more urgent issues. Indeed, there are more pressing issues to be discussed this coming December. Moreover, the UNSG mechanism is not a BWC-based mechanism, and the responsibility to maintain, update and if necessary revise it rests with the UN Secretariat, in particular UNODA, and UN members. Nevertheless, I share Ralf Trapp’s view that the Review Conference should at least acknowledge the useful auxiliary function(s) that the SG mechanism could assume for the BWC and for its members in the absence of more robust compliance measures. I would also argue that it might be useful for BWC states parties to discuss the potential roles of the UNSG mechanism for the BWC in more detail, though this might indeed be better suited for intersessional discussions than for the Review Conference deliberations.

In his comments, Ralf Trapp made convincing points on why it could be beneficial to associate the UNSG mechanism with the BWC. Through its preamble and Article VIII, the BWC is closely connected with the Geneva Protocol, and the use of biological weapons is prohibited under the BWC implicitly and by additional understandings of the States Parties. Alleged biological weapons use by a BWC member, which could be investigated through the UNSG mechanism, would therefore represent a case of alleged non-compliance with the BWC. As Ralf pointed out, the mechanism is also the most elaborated tool available to the UN Security Council (UNSC) if a complaint regarding alleged bioweapons use was lodged under BWC Article VI. In this case, the UNSC could ask the UNSG to carry out an investigation as fact-finding mission to provide a factual basis for its decision-making.

As Iris mentioned in her paper, the UNSG mechanism was designed to investigate the use of biological weapons but not their production or proliferation, which means that there seems to be no role for it in cases of non-compliance other than BW use. However, situations are conceivable in which the UNSG might wish to initiate fact-finding missions also in cases of other BWC violations.¹ At first glance, this sounds far-fetched. After all, the UNSG has no institutionalised role in or capacity for monitoring compliance with the BWC. However, the UNSG does have the authority to “bring to the attention of the Security Council any situation that might pose a threat to international peace and security” (UN Charter Art. 99). Since the UN Security Council has repeatedly confirmed that the proliferation of biological weapons constitutes a threat to international peace and security², well-founded suspicions of BW proliferation might be one such “situation” that the UNSG could bring “to the attention of the Security Council”. As pointed out in a commentary to the UN Charter, the UNSG’s authority under Article 99 necessarily includes a “right to information”, since the UNSG would need solid information in order to assess whether or not a situation is grave enough to warrant the attention of the UNSC.³ Since involving the UNSC would be a highly sensitive political issue, it would need to be based on credible evidence – which the UNSG might obtain, or evaluate, with the help of the experts at their disposal.

Such action would of course not be based on the BWC but would derive its legal authority from the UN Charter. Nevertheless, the results of such fact-finding exercises would benefit the BWC, too; depending on the circumstances, they could even be fed into possible consultations initiated under BWC Article V. It should be kept in mind that the UNSG might also reach the conclusion that there are no sufficient reasons for the UNSC to become involved or that allegations of non-compliance with the BWC do not seem well-founded. Investigations initiated by the UNSG could thus not only contribute to uncovering non-compliance, but also to refuting such allegations. Even if one takes into account all the legal and political intricacies that such an interpretation of Article 99 of the UN Charter might entail, the mechanism could thus still be a valuable tool in the fight against biological weapons, especially in the absence of a more effective BWC compliance system.

In his comments, Ralf also mentioned BWC Article VII, and I think this merits even further attention. Article VII calls on states parties to provide or support assistance at the request of other states parties „if the Security Council decides that such Party has been exposed to danger as a result of violation of the Convention”. Any such decision by the Security Council would require some kind of investigation, e.g. regarding the source of an outbreak of disease, before a violation of the BWC could be determined. Such investigations and the subsequent UNSC decision would be facilitated by making use of the infrastructure established for the SG mechanism, which could in turn speed up the process of providing assistance.

There are thus potentially useful roles for the mechanism in relation to Articles VI, VII and, though indirectly, V. Therefore I agree with Ralf that it would be desirable if the 7th Review Conference reaffirmed the utility of the UNSG mechanism and its connection with the BWC, preferably in stronger and more direct terms than in the past. This would not necessarily detract too much attention from other issues but would leave the regime with one available tool in its under-equipped compliance toolbox.

References

1. The following idea was first developed by Harald Müller, Una Becker and Carmen Wunderlich in „While Waiting for the Protocol: An Interim Compliance Mechanism for the BWC“, The Nonproliferation Review 12: 3, 2005, 541-572.
2. UN Security Council, S/23500, 31 January, 1992, p. 4; S/RES/1540 (2004); S/RES/1673 (2006); S/RES/1810 (2008); S/RES/1977 (2011).
3. Simma, Bruno et al. (eds.) 2002: The Charter of the United Nations: A Commentary, 2nd ed., Vol. II, Munich: C.H.Beck, p. 1220.

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