From the poisoning of wells with human corpses by Roman Emperor Barbarossa in 1155, through the 20th century, Nazi Germany’s use of poison gasses up to the recent reports of the use of chemical weapons by the Russian and Ukrainian forces against each other, bio-chemical warfare has always been a component of conflict. Recent reports of Gain of Function research, China’s policy of genetically bioengineering a more ruthless and capable army, and reports of new viruses waking up from ice melting in the Arctic have triggered the construction of apocalyptic and warfare theories and renewed interest in developing international consensus on avoiding any further such deliberate catastrophes.
The invasion of the Black Sea port using plague-infested bodies by the rushing Mongol hordes in the 1300s, bringing devastation to Europe, killing one-third of its population can be said to be the deadliest of biological attacks ever in human history. The deliberate introduction of Rinderpest by the British in Africa to kill the livestock of the traditional and self-sufficient tribal herdsmen was a case of biological warfare technically speaking. Attacks with chemical weapons like chlorine, phosgene, and mustard gas in World War I and the resultant devastation to the human population, forced countries to consider the need to prohibit the usage of such weapons in war.
International Law vis-à-vis Bio-chemical Warfare
The adoption of the Geneva Protocol or Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases and Bacteriological Methods of Warfare in 1925 was the first attempt at imposing prohibitions on its usage. The Protocol prohibited the use of chemical weapons, but did not address the manufacturing and stockpiling of the same. State parties even argued for using such weapons against non-state parties in retaliation.
In 1972, US President Nixon allegedly destroyed a stockpile of bio-weapons based on his unilateral declaration. This initiative triggered a universal consensus and led to the adoption of the Biological and Chemical Weapons Conventions. The Biological Weapons Convention (BWC) adopted in 1975 is considered the first multilateral disarmament treaty banning an entire category of Weapons of Mass Destruction. It has placed prohibitions on the development, production, acquisitions, transfer, stockpiling, and use of such weapons. An inclusive ban on unjustified use of all microbial, biological agents or toxins, and weapons, equipment, or means of delivery of the same make this an all-encompassing Convention. The member countries have pledged to ensure the destruction of existing weapons, take national action to control the proliferation, assisting member countries and UNSC in investigations or the event of exposure or danger from such attacks. Faced with the increasing demand for an aggressive stance against the usage of Chemical weapons, the Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on their Destruction (Chemical Weapons Convention or CWC) was adopted in 1992. The CWC comprehensively defined Chemical weapons to include toxic chemicals, components, and even delivery systems. Providing the Principle of Consistency, the CWC allows the production, stockpiling, and use of such chemicals for legitimate or peaceful purposes. Curtailing the use of Riot Control Agents, banning the use of Dual-use chemicals, herbicides, Central Nervous System Acting Chemicals, toxins- synthetic and biological, choking agents, blister agents, blood agents, and nerve agents, this Convention has covered all the bases possible currently. The Organisation for the Prohibition of Chemical Weapons established in 1997, with representation from 189 countries, has been on the mission to destroy the existing and prevent the development and stockpiling or use of new ones.
Implementation Challenges Associated with Bio-Chemical Conventions
Nazi Germany’s usage of Mustard Gas, Zyklon B, and other poisonous gasses during the Holocaust, killing millions of Jews, increased stockpiling during the cold war and unverified usage against Iran during Gulf War are evidence of the ineffectiveness of the Protocol.
Despite the dramatic consensus, ratifications with reservations by state members resulted in defeating the very purpose of these conventions. Being of natural origin, attacks using biological agents are very difficult to prove and substantiate. The same was seen in the case of COVID-19, despite strong suspicions worldwide, of China’s Wuhan Lab leaking the coronavirus to the surrounding area. The high virulence and dispersibility of these micro-organisms with the least effort and the corresponding difficulty in assigning accountability make this a potent weapon, waiting to be misused if it falls into the wrong hands. The use of Anthrax in contaminating envelopes leading to deaths in 2001 and the Japanese spraying of anthrax from aircraft over Chinese cities in 1932 is proof of the ease with which they can be misused. The application of such bio-agents for prophylactic, protective, and other peaceful purposes necessitates a stronger investigation effort to prove culpability. State Parties are not obligated under the BWC to share information on their research into such biological weapons conducted now or before the Convention. Also, the complete lack of a mechanism to substantiate the claim of the destruction of such weapons by a state is the major drawback of this Convention.
Recently, the concept of Gain of function research labs in Coronaviruses in China and anthrax labs in Ukraine has sent the scientific and international community scrambling for explanations. Despite its eradication, smallpox has been saved in small quantities by some countries for research purposes, admitted by studies to have deadly potential if it falls into the hands of and is misused by bio-terrorists. Dr. Ustinov, a Russian researcher died from the accidental leakage of the Marburg Virus (which led to its declaration as a Class A Warfare Agent) from whose corpse, it is alleged that the deadliest form of the virus was harvested by the Russians to be used in future. Such micro-organisms can bring a mass-extinction event of epic proportions. Moreover, Chemical attacks continue to occur- like the Ghouta chemical attack (Sarin) by Syrian forces in 2013 and the OPCW’s recent reports on a new type of Novichok (a chemical not included in the list of Controlled Chemicals) being used against dissidents including Navalny by the Kremlin. Claims and counterclaims of alleged chemical attacks on Ukrainian forces with ammonium nitrate and botulinum by Ukrainians on the Russians elicit an unbiased and thorough ground-level investigation.
With the change in technology and increasing world attention, the trend has shifted from mass-scale to local-level attacks, reducing the relevance of the Convention. For instance, the poisoning of Sergei Skripal and his daughter in Salisbury, UK with Sarin gas, a nerve agent was a small-scale attack. Newer chemicals and toxins are being developed at an accelerated rate, which no convention can keep pace with. Rampant violations and non-compliance by state and non-state parties who indulge in a chain of never-ending retaliatory actions is a major concern since the CWC cannot impose sanctions, and this power is vested with only the UN General Assembly and Security Council. Another issue can be the overreaching definition of chemical weapons including all chemicals, causing difficulties in implementation due to their diverse applications and dual-use nature.
Overcoming the Challenges
Considering the persisting issues, international consensus must be built for the assignment of accountability and the scientific community must be forced to abide by establishing a code of conduct and ethics to prevent the misuse of technology to the detriment of mankind. The potential for misuse or accidental leakage while in storage and being handled cannot be left unaddressed. A more specific list including chemicals for innocuous uses but still dangerous is essential for reducing the risk of such attacks going under the radar. A continuous and concurrent review of the list of controlled chemicals is a must. There is a need to establish a powerful body apart from the UN organs to take immediate action and/or conduct an investigation on the lines of the IAEA.
Despite the efforts of the international community in bringing Conventions for the disarmament and prevention of proliferation, these weapons are still being used openly due to the difficulty in proving their use. The next step must be taken in the direction of strengthening the implementation and enforcement mechanism while bringing the parties unleashing them, to justice with sanctions and penalties. The lack of international will to hold China responsible for its negligence with COVID-19 and the incapacity of multilateral organizations in taking action is a wake-up call to us to ensure no such incident of catastrophic proportions is repeated.
Author(s) Name: Ranjana S (Advocate, High Court of Bombay)