Biological weapons under international law

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An introduction to the international regulation of biological weapons. 

By ILPI
December 2016

Biological weapons are subject to a specific and comprehensive prohibition under international law. The 1972 Biological and Toxin Weapons Convention (BWC) bans the development, possession, and transfer of biological weapons, and obliges States Parties to destroy or divert to peaceful purposes all such weapons in their possession or under their jurisdiction or control.

Introduction

Biological weapons are subject to a specific and comprehensive prohibition under international law.[1] The 1972 Biological and Toxin Weapons Convention (BWC)[2] bans the development, possession, and transfer of biological weapons, and obliges States Parties to destroy or divert to peaceful purposes all such weapons in their possession or under their jurisdiction or control. The Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare of 1925 (the Geneva Protocol, or the Gas protocol), explicitly prohibits the use of bacteriological (biological) weapons. In addition, most conceivable instances of biological weapons use would—in the same way as the use of nuclear and chemical weapons—be prohibited under the general rules of humanitarian law due to their indiscriminate effects or their ability to cause superfluous injury or unnecessary suffering.

This ILPI background paper provides an overview of the conventional and customary international legal rules applicable to biological weapons. It outlines the main rules that apply to this weapon category under international humanitarian law, international disarmament law and international criminal law, respectively. It also highlights some challenges related to the definition of biological weapons and our ability to prevent the hostile use of biology considering the rapid development of new and converging technologies.

What are biological weapons?

The 1925 Geneva Protocol refers only to bacteriological methods of warfare, without a specific definition. Article 1 of the BWC prohibits ‘microbial or other biological agents, or toxins whatever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective or other peaceful purposes.’ It further prohibits ‘weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict.’ Biological weapons are thus defined based on their intended purpose, which is often referred to as a general-purpose criterion. This is a definitional approach that considers the dual-use nature of the items of technologies to be controlled, meaning that they can be used both for peaceful purpose or in warfare. This is similar to the approach used to define chemical weapons under the 1993 Chemical Weapons Convention.

There is a general understanding among states that biological weapons are organisms or toxins that could be used to deliberately cause or spread diseases, intended to harm or kill humans, animals or plants. Thus, biological weapons include disease-causing agents such as bacteria, virus, protozoans, parasites and fungi, rickettsiae, or other living organisms, as well as toxins, i.e. poisons extracted from living organisms, or similar substances produced synthetically. Efforts to weaponise such agents have included anthrax, ricin, plague, smallpox and tularaemia.

Poisoning and the intentional spread of disease as a weapon of war is nothing new – the utilisation of biology for hostile use can be traced far back in history.[3] Yet, in an era of rapid advancement in science and technology combined with easy access to information, it is becoming increasingly difficult to control how and by whom such new knowledge is used.


Military use of biology beyond weapons

While traditional biological and chemical agents designed for hostile purposes were intended for use against enemy soldiers, and clearly would be classified as weapons, modern agents may also be used to enhancethe capability of a states own military forces—in other words for performance enhancement of troops. In such cases, it is much less likely that the agents would amount to weapons. Body armour is not classified as a weapon. Biological performance-enhancing agents may nevertheless pose challenges to the ability to ensure respect for international humanitarian law, as their purpose will often be to induce increased hostility, aggression and other traits that can increase the likelihood that individuals may commit violations of the law.[4] Although the use of such agents may not be covered by the prohibition in the BWC of weapons, equipment or means of delivery designed for hostile purposes, they may be covered by the prohibition of use in armed conflict (Article I).


Biological weapons and international humanitarian law

Biological weapons in their current form are inherently indiscriminate weapons. It is almost inconceivable that they could be directed at a specific military objective, and they are therefore unlawful under the general rules of IHL.[5]

Being indiscriminate, biological weapons are unlawful under Article 48 and 51(4)(b) of Additional Protocol I to the Geneva Conventions (API). Furthermore, the effects of biological weapons can arguably not be limited to military objectives alone, and are also for that reason to be categorised as indiscriminate within the meaning of the protocol’s Article 51(4) (c).

Biological weapons that would lead to permanent harm or death for enemy belligerents could moreover be considered to be in violation of the prohibition against the use of ‘weapons, projectiles and material and methods of warfare’ that lead to superfluous injury or unnecessary suffering in Article 35 (2) of AP I.

Biological weapons are perhaps the only weapons that cannot in any way or form be directed only at military objectives. A disease will not distinguish between civilians and combatants. A Japanese biological weapons attack on the Chinese city of Changde in 1941 resulted in the death of around 10,000 people. About 1700 Japan’s own troops were also among the casualties.[6] This unwarranted effect may also explain why the use of bacteriological weapons was included in the 1925 Geneva Protocol (Gas Protocol), which was drafted largely in response to the extensive use of chemical weapons during World War I.[7]

The prohibition on use of bacteriological weapons in the 1925 Gas Protocol is considered customary law[8] and therefore binding on all states.  In a 1971 study of chemical and biological weapons (CBW), the Stockholm International Peace Research Institute (SIPRI) noted that ‘the majority of international lawyers today concur […] that a customary prohibition of CBW is indeed part of international law.’[9]

One challenge regarding the customary prohibition on the use of biological weapons is that the prohibition in the Geneva Protocol and the general IHL rules in AP I is limited to international armed conflicts. However, the Tadić case in the International Criminal Tribunal for the former Yugoslavia (ICTY) suggested that the customary prohibition also extended to non-international conflict.[10] The International Committee of the Red Cross (ICRC) Customary Study rule 73 also concludes that biological weapons are prohibited in both international and non-international armed conflict. [11]   

Biological weapons and international disarmament law

The prohibitions

The 1972 BWC is the primary legal instrument applicable to biological weapons.[12] The BWC was the first international convention to comprehensively ban an entire category of weapons. Signed and/or ratified by all but 12 states,[13] the convention prohibits the development, production, stockpiling, acquisition, retention, transfer and—albeit not explicitly—the use of biological weapons.[14] The prohibitions cover all scientific and technological developments relevant to the Convention.[15] The scope of the BWC’s prohibitions has since 1972 been matched by other comprehensive weapon prohibition treaties, such as the Chemical Weapons Convention (CWC), the Anti-Personnel Mine Ban Convention (APMBC) and the Convention on Cluster Munitions (CCM).

The prohibitions in the BWC cover microbial or other biological agents or toxins of types and in quantities that have no justification for peaceful purposes. They extend to weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict (Article I).

Parties also undertake to destroy or divert to peaceful purposes (Article II), and not to transfer or assist others with the acquisition (Article III) of prohibited items.


Prohibiting the use of biological weapons

The text of the BWC itself does not explicitly prohibit the use of biological weapons. A common explanation for this is that the use of biological weapons was proscribed already in the 1925 Geneva protocol.[16] One challenge with this understanding is that the Protocol only prohibits the use of bacteriological weapons, while biological weapons as currently understood include a wider variety of germs and mechanisms (see above). Furthermore, 37 States when becoming party to the Gas Protocol entered so-called ‘no first use’ reservations, retaining the right to retaliate if an adverse party violated the Geneva Protocol.

The prohibition of use can also be seen as a derivation from the BWC. The prohibition of all forms of possession in the BWC would in practice exclude any form of use.[17] The preamble (para 10) underlines that such use would be ‘repugnant to the conscience of mankind’, an ambiguous reference to the Martens clause.[18] In addition, many states with reservations to the Gas Protocol withdrew their reservation of ‘no first use’ upon signing the BWC, implicitly recognizing a wider prohibition on use following from the BWC.[19] The 1996 Fourth Review Conference of the BWC affirmed that ‘the use by States Parties, in any way and under any circumstances, of microbial or other biological agents or toxins, that is not consistent with prophylactic, protective or other peaceful purposes, is effectively a violation of Article I of the Convention.’[20] Thus the BCW itself is now understood to include a ban on use. The ICRC Customary Study also concludes that based on the drive to eliminate biological weapons ‘[…] States believe that these weapons should not exist and therefore must not be used in any circumstances, including in non-international armed conflicts.’ [21]


Other legal obligations

The BWC stipulates a general-purpose criterion whereby all agents and toxins are prohibited ‘that have no
justification for prophylactic, protective or other peaceful purposes’ (Article I). Most agents and toxins can be used with important benefits for peaceful purposes, but may also serve as essential components in biological weapons. The dual-use nature of biological research and development is therefore a key issue in the biological arms control regime.

The BCW requires the complete destruction of all biological weapons and no future production, but—in contrast to similar conventions such as the CWC—without providing a specific regime of verification or enforcement. Nor does the treaty establish an independent intergovernmental institution tasked with monitoring and promoting the Convention’s implementation such as the Organisation for the Prohibition of Chemical Weapons. The BWC has therefore been described as inherently unverifiable[22] and poorly equipped when it comes to addressing potential cases of non-compliance. In this regard, the BWC is similar to the more recent Anti-Personnel Mine Ban Convention (APMBC) and the Convention on Cluster Munitions (CCM), which mainly rely on a ‘cooperative complianceapproach, which assumes that States Parties are in compliance unless there is reason to believe otherwise and builds on cooperation among States Parties in mitigating potential cases of non-compliance.

If problems arise related to the objective of the treaty or the application of its obligations, Member States must consult and cooperate and may lodge a complaint before the UN Security Council if it finds that another State Party is breaching its obligations. Based on such a complaint, the Security Council may initiate an investigation in accordance with the provisions of the UN Charter (Article V, VI). States Parties are obliged to provide assistance to any State Party that has been ‘exposed to danger’ due to treaty violations (Article VII).

The BCW calls for member states to facilitate exchanges of equipment, materials or information for the use of biological agents and toxins for peaceful purposes, and to cooperate in contributing to scientific discoveries for the prevention of disease or other peaceful purposes (Article X).

The Convention requires each country to take the necessary measures to enforce its prohibitions at the national level (Article IV). Regular review conferences convening all States Parties review the operation of the Convention and adopt recommendations to promote its implementation and effectiveness. The treaty specifically calls for the Review Conferences to ‘take into account any new scientific and technological developments relevant to the Convention.’ (Article XII)

Non-legal commitments

In the absence of a legally binding verification regime for biological weapons, states have developed non-binding voluntary measures designed to provide reassurances and demonstrate compliance with the provisions of the BWC.

The main mechanism for this is the exchange of Confidence-Building Measures (CBMs), a system of information exchange among States Parties that enhance transparency on issues of relevance to biological arms control.[23] The first CBMs were agreed at the Second Review Conference in 1986 ‘in order to prevent or reduce the occurrence of ambiguities, doubts and suspicions and in order to improve international cooperation in the field of peaceful biological activities.’

The CBMs have later been expanded and modified several times, and now include: exchange of information on research centres, laboratories, biodefence research and development programmes, as well as outbreaks of infectious diseases and similar occurrences caused by toxins; encouragement of publication of research results and promotion of the use of such knowledge for permitted purposes; declaration of relevant legislation, regulations and other measures; declaration of past offensive and/or defensive biological research and development programmes; and declaration of vaccine production facilities. The CBMs are circulated only among States Parties, but a number of States Parties make their CBMs publicly available as well. The effectiveness of the CBMs have been seen to be limited by the fact that not all States Parties submit their CMBs or do so irregularly, as well as by the information submitted in many cases being inadequate or of poor quality.


The story of the Ad Hoc Group

In 1991, the Third Review Conference of the BWC established an Ad Hoc Group of Governmental Experts to identify and examine potential verification measures from a scientific and technical standpoint (VEREX).[24] A Special Conference of the States Parties was convened in 1994, which considered the Group´s report and decided to establish an Ad Hoc Group of States Parties to consider measures and draft proposals to strengthen the Convention, including possible verification measures. In 1996, the Fourth Review Conference considered the work of the Ad Hoc Group and encouraged it to start negotiations of a legally binding instrument to strengthen the Convention, which would be submitted for adoption to a Special Conference of States Parties before the Fifth Review Conference.  It specified that the draft would need to be adopted by consensus.

In 2001, after six years of negotiations, the chairman of the Ad Hoc Group presented a compromise proposal for a legally binding protocol to the BWC, proposing a strengthening of the Convention through establishing on-site facility visits and procedures for investigating allegations of non-compliance.[25] Containing institutionalised measures for verification and monitoring of compliance, the draft protocol would have established procedures for a more effective differentiation of permitted and prohibited research activities at national facilities. The negotiations came to an end, however, when the United States withdrew its support for the protocol, arguing that it would not be an effective tool for preventing non-compliance, and that it would impose unfair burdens on the U.S. biotechnology industry and national biological defence programs.[26]

After the collapse of negotiations in the Ad Hoc Group and further contentious discussions during the Fifth Review Conference later that year, the Conference was finally suspended on 7. December 2001.[27] A resumed session of the Conference was held 11-22 November 2002 – but with the absence of any negotiating component. It was decided to hold annual meetings of Experts and Meetings of State Parties until the Sixth Review Conference. Most observers held the United States responsible for the breakdown of the protocol negotiations, even though it has also been noted that many countries of the Non-Aligned Movement (NAM) were equally unwilling to accept the draft protocol text, but changed their position to let the United States take the blame. [28]


The establishment of an intersessional process and a small secretariat for the treaty have been other decisions aimed at strengthening the implementation mechanisms of the treaty.

In 2002, the resumed session of the Fifth Review Conference established an intersessional process between each Review Conference consisting of annual Meetings of States Parties to be prepared by annual expert meetings. These meetings would promote common understanding and action within different areas of implementation, such as the adoption of national implementing measures; mechanisms to ensure oversight of pathogens and toxins; the strengthening of disease surveillance; and the promotion of codes of conducts for scientists. Such meetings were continued after the Sixth Review Conference with additional issues for consideration. The Seventh Review Conference also decided to continue the intersessional programme, and to include a review of science and technology as a standing agenda item to be discussed both by the Meeting of Experts and the Meeting of State Parties during 2012-2015.[29]

At the Eight Review Conference in 2016, many States as well as civil society organisations had called for a strengthened intersessional programme and the adoption of a new and more robust mechanism for reviewing scientific and technological developments. Instead, the Conference ended without being able to agree on a substantive programme of work and agreement on this will be sought at the Meeting of States Parties in 2017.

In 2006, the Sixth Review Conference decided to set up a BWC Implementation Support Unit (ISU) that is tasked with providing administrative support to the Convention, support national implementation and universalisation efforts, and the exchange of confidence-building measures. This is a small unit located within the Geneva branch of the UN Office for Disarmament Affairs. There were proposals at the Eight Review Conference for enhancing the ISU and expanding its resources, but the only decision reached was to renew the ISU´s mandate agreed to at the Seventh Review Conference for the next period.

Biological weapons and international criminal law

The use of biological weapons is not explicitly criminalised in the Rome Statute (ICC).[30] Its Article 8(2)(b)(xvii) bans the use of ‘poison or poisoned weapons’; a prohibition first codified in 1899. Article 8(2)(b)(xviii), which is derived from the 1925 Geneva Protocol, makes the use of ‘asphyxiating, poisonous or other gases’ a war crime, but notably does not make the use of bacteriological weapons a war crime, although they are listed in the 1925 Protocol. Nor is there any mention of chemical or biological weapons in the Statute.[31]

During the negotiations of the Rome Statute in 1998, the criminalisation of the use of non-conventional weapons of was ‘one of the most controversial issues’ in the discussions.[32]  Controversy over nuclear weapons led to the exclusion of explicit references to chemical or biological weapons.

This position evolved from a view that ‘if nuclear weapons were not to be included, then the poor person’s weapons of mass destruction, chemical and biological weapons, should not be either’.[33] A review of the Summary Records of both the plenary and Bureau of the Committee of the Whole (BCOW) meetings shows that, throughout the conference, delegates did not openly object to listing chemical or biological weapons use as a war crime. Observers corroborate this finding.[34] There was also general dismay at the removal.[35]

An examination of the ICC terminology indicates that the word poison does not include biological weapons. The ‘Elements of Crimes’ addition to the Rome Statute defines a poison as a substance, which causes death or serious damage to health in the ordinary course of events because of its toxic properties.[36] Biological weapons are microorganisms with the ability to inflict damage or cause disease, which are not used for prophylactic, protective or other peaceful purposes.[37] Toxins are poisonous substances produced by a living being.[38] Therefore, toxin weapons are either toxins or chemicals.[39] Being neither toxins nor chemicals, biological agents do not fall under the category of ‘poison.’

A Belgian proposal for the Review conference in 2010 suggested expanding prohibitions with direct references to biological and chemical weapons.[40] The proposed amendment was abandoned during the review conference, as it was deemed too complicated for a swift treatment.[41] However, the conference did extend existing prohibitions related to poison and gases to protracted non-international armed conflict in 2(e)(xiii) and (xiv).

About 1/3 of the States Parties to the BWC have specifically criminalised the use of biological weapons. Many more criminalise the intentional infection or intoxication of humans, plants or animals with disease-causing agents or toxins. The absence of a provision criminalising the use of bioweapons in the Rome Statute nevertheless represents a striking (and largely incidental) lacunae in the international legal regulation of biological weapons.

Defining biological and chemical weapons in the age of technological convergence

It is not always evident whether an agent should be classified as a chemical agent, and hence governed by the international instruments applicable to chemical weapons, or a biological agent, subject to the rules applicable to bioweapons. While the Chemical Weapons Convention specifies that chemical weapons are toxic chemicals or their precursors and provides a broad definition of what this means (as well as a list of toxic chemicals to which verification measures applies included in the Annex on Chemicals), the BWC does not seek to define the biological agents and toxins to which it applies. Presumably, a key difference between biological and chemical agents is that biological agents are made up of living organisms. The history of weaponisation of diseases (living organisms) provides several examples that are commonly relied on to illustrate what biological weapons are.[42] Yet to define biological weapons as weaponised disease is increasingly inaccurate. With new technologies, biological organisms can be created from chemical substances or even informatics. Thus, an in important conceptual question is whether weapons should be defined by their properties (biological, chemical, or informatics) or effect (illness or injury).

There is currently no universally agreed definition of weapons created by biotechnology or convergent technologies. Incapacitating biochemical agents have been described as substances that act on specific biochemical processes and physiological systems, especially those affecting the higher regulatory activity of the central nervous system, producing a disabling condition (e.g. incapacitation or disorientation, incoherence, hallucination, sedation, loss of consciousness).[43]

Current and foreseen advances in technology, synthetic-bio and syngenomics will soon bring about very challenging definitional questions. It is biological research that will essentially revolutionise self-learning robotics and computational systems. The method is biological, but the effect is kinetic. Nanotechnology can produce toxic chemicals with novel properties.[44] This technology may also facilitate the development of synthetic organisms with a high degree of lethality.[45] Similarly, the application of computing and software innovations to various emerging technologies has led to major changes in the military tactics of developed nations, which may have outpaced existing arms control regimes under international law.[46]

It has been suggested that, based on the manner in which they can be used, one should legally view these weapons as part of a ‘continuous biochemical threat spectrum, with the CWC and the Biological and Toxin Weapons Convention (BWC) overlapping in their coverage of mid-spectrum agents such as toxins and bio-regulators’.[47] One key issue relating to this ‘overlap’ is which of the two conventions would be seen as applicable to biochemical agents. The CWC has strong mechanisms for securing implementation through the Organisation for the Prohibition of Chemical Weapons (OPCW) and verification and inspection systems. However, the BWC does not have corresponding mechanisms for verification or other forms of implementation monitoring. Defining toxic agents that are largely chemical as biology may therefore undermine the monitoring mechanisms of the CWC. This is a challenge that would likely need to tackled in the future both within the context of the BWC and the CWC.

Upholding the ban on biological warfare in the face of new technological developments

The BWC has been an extremely successful treaty in establishing a strong norm against biological weapons with no known cases of significant non-compliance. At the same time, it has proven extremely difficult to reach agreement on strengthening the treaty, most notably on verification measures, but also in other areas such as the establishment of a robust framework for reviewing developments in science and technology.

Biological science and technology has advanced exponentially since the adoption of the BWC in 1972. Although the Convention is uniquely broad and bans ‘microbial or other biological agents, or toxins, whatever their origin or method of production (emphasis added),’ the ongoing revolution in biology does pose potential challenges for the Convention. While new scientific advances offer tremendous benefits for mankind, for example in terms of preventing diseases, developing new treatments and increasing food production, many of the same advances can also be used for hostile purposes.

Much attention has been devoted to the evolving threat of bio-terrorism over the past years and this is indeed an on-going concern, but it cannot be ruled out that also States will be drawn to the prospects of using biological weapons. Advancements in the biological sciences are ensuring that biological weapons are becoming easier to develop, more effective in their use, and harder to detect[48] – qualities that may increase the attractiveness of these weapons while also reducing the obstacles to developing and using them for all actors.

Monitoring developments in science and technology will be an essential component of preventing their misuse for hostile purposes, as well as outreach to and active engagement with the scientific community. The implications of failing in this endeavour are profound as experts have documented a wide variety of existing and emerging scientific advances with potential military applications.[49] The International Committee of the Red Cross underscored what is at stake in its statement to the Eight Review Conference of the BWC in November 2016: ‘we must do everything possible to ensure that the life processes at the core of human existence are never manipulated for hostile purposes.’


[2] Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and Their Destruction (BWC). Also referred to as the Biological and Toxin Weapons Convention (BTWC), 1015 UNTS 164. It opened for signature 10 April 1972 and  entered into force on 26 March 1975.

[3] See for example B. R. Schneider, ‘Biological Weapons’, Encyclopædia Britannica (last updated 9 December 2014). Available at: http://global.britannica.com/technology/biological-weapon.

[4] M. Wheelis and M. Dando, ‘Neurobiology: A Case Study of the Imminent Militarization of Biology’, International Review of the Red Cross, Vol.87 No.859, September 2005, pp. 562-3.

[5] See Article 51 (4) b, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977

[6] S. Riedel, ‘Biological Warfare and Bioterrorism: a Historical Review’, Proceedings, vol. 17, no. 4 (2004), p. 402.

[7] Conference for the Supervision of the International Traffic in Arms (Geneva), Protocol for the Prohibition of the Use of Asphyxiating, Poisonous, or Other Gases, and of Bacteriological Methods of Warfare. Geneva, 17 June 1925, 94 LNTS 65, Geneva Gas Protocol.

[8] Prosecutor v. Tadíc, Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction. No. IT-94-I-AR72, 2 October 1995. §§ 96-127; ICRC Customary Study rule 73.

[9] Anders Boserup, ‘The Problem of Chemical and Biological Warfare’, in Vol. III: CBW and the Law of War, Stockholm International Peace Research Institute, Almqvist & Wiksell: Stockholm, p. 126

[10] Tadíc 1995 §§ 96-127.

[11] J.M. Henckaerts and L. Doswald-Beck, Customary International Humanitarian Law Study, Vol. I: Rules, ICRC/Cambridge University Press, p. 257.  For criticism of this as a customary rule, see David Turns, ‘Weapons in the ICRC Study on Customary International Humanitarian Law’, Journal of Conflict and Security Law, Vol. 11, no. 2 (Summer 2006) p. 221.

[12] For a detailed analysis of the Convention´s legal regime, see E. Stein, ‘Impact of New Weapons Technology on International Law’, 133 Recueil des Cours de l’Académie de Droit International de la Haye (1971 II), p. 223-388.

[13] It has 178 State Parties as of 6 December 2016, and six signatory states: Central Africa Republic, Egypt, Haiti, Somalia, Syrian Arab Republic and United Republic of Tanzania. 12 states have neither signed nor ratified the convention: Chad, Comoros, Djibouti, Eritrea, Israel, Kiribati, Micronesia (Federated States of), Namibia, Niue, Samoa, South Sudan and Tuvalu.

[14] At the Fourth Review Conference in 1996, States Parties reaffirmed that the use of biological agents or toxins would effectively be a violation of Article 1. This was confirmed by the Sixth and Seventh Review Conferences. See also Box B.

[15] This was concluded by the Second Review Conference in 1986, Final Document, BWC/CONF.II/13, Part II, Article I.

[16] J. Goldblat, ‘The Biological Weapons Conventions: An Overview’, International Review of the Red Cross, No. 318, June 1997, Y. Dinstein, Conduct of Hostilities under the Law of International Armed Conflict, Cambridge University Press 2005 p. 76.

[17] Y. Dinstein, ibid; E.P.J Myjer, ‘Means and Methods of Warfare and the Coincidence of Norms between the Humanitarian Law of Armed Conflict and the Law of Arms Control’, International Law and the Hague’s 75ths Anniversary, 371 at 373. (W.P. Heere ed. 1999).

[18] Referring to ‘the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience’, 1899.

[19] However, many States have maintained their reservations despite becoming party to the BWC.

[20] Fourth Review Conference, 25 November-6 December, 1996, Final Document, BWC/CONF.IV/9, Part II, Article 1 (3).

[21] J.M. Henckaerts and L. Doswald-Beck, p. 257.

[22] The expression can be traced back to a UK working paper presented at the Eighteen Nation Disarmament Committee, precursor to the current Conference on Disarmament, in 1968), see Document ENDC/231, para. 3, reproduced in SIPRI, ‘The Problem of Chemical and Biological Warfare’, Volume IV CB Disarmament Negotiations, 1920-1970, Almqvist & Wiksell: Stockholm, 1971, pp. 255-56.

[23] Second Review Conference, 8-26 September 1986, Final Document, BWC/CONF.II/13, Part II.

[24] Third Review Conference, 9-27 September 1991, Final Document, BWC/CONF.III/23, Part II (Article V).

[25] J. Tucker, ‘The Fifth Review Conference of the Biological and Toxin Weapons Convention’, February 1 2002, available at http://www.nti.org/analysis/articles/biological-and-toxin-weapons-bwc/

[26] Ibid.

[27] In a last-minute standoff, the United States demanded to bring the Ad Hoc Group exercise to an end. For a comprehensive review of why the negotiations failed, see J. Rissanen, ‘Continued Turbulence over BWC Verification’, Verification Yearbook (2002): 75-92.

[28] J.P. Zanders (ed.), ‘Setting a Standard for Stakeholdership: Industry Contribution to a Strengthened Biological and Toxin Weapons Convention’, Egmont Paper, 52, Belgian Royal Institute for International Relations, ISS, 2011 at p. 7

[29] Seventh Review Conference, 5-22 December 2011, Final Document, BWC/CONF.VII/7, Part III.

[30] Use of biological weapons will in many cases be covered by other provisions, such as 8(2)b) xx), prohibiting methods and materials of warfare that are of a nature to cause superfluous injury or unnecessary suffering, or are inherently indiscriminate, if and when an annex has been agreed to the provision.

[31] Most hold that biological weapons are therefore not included in the Rome statute. M. Wagner, ‘The ICC and its Jurisdiction— Myths, Misperceptions and Realities’, 8 April 2003. In: A. von Bogdandy and R. Wolfrum (eds.), Max Planck Yearbook of United Nations Law, Vol. 7. The Netherlands, Koninklijke Brill N.V., 2003. p. 460 Others assume as a given that biological weapons are included on the premise that the poisoned weapons term is ‘the first prohibition’ of both chemical and biological weapons. M. Dando and K. Nixdorff,  2009. p.2; M. Cottier, ‘War Crimes: Article 5’. In: Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court, Observers’ Notes, Article by Article, 2nd edition. Oxford, Hart Publishing, 2008. p. 413.

[32] M. Cottier, ibid. p. 415.

[33] Ibid, p. 376.

[34] Ibid, p. 412.

[35] United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Summary Record of 9th Plenary Meeting,  A/CONF.183/SR.9, 17 July 1998, §48  United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Committee of the Whole, Summary Records of the 4th Meeting, A/CONF.183/C.1/SR.4, 17 June 1998, §74; Committee of the Whole, Summary Records of the 33rd Meeting, A/CONF.183/C.1/SR.33,  13 July 1998, §§33, 75; Committee of the Whole, Summary Records of the 34th Meeting, A/CONF.183/C.1/SR.34, 13 July 1998, § 4.

[36] Assembly of States Parties, Elements of Crimes, Article 8(2)(b)(xvii) War Crime of Employing poison or poisoned weapons ICC-ASP/1/3. 9 September.

  1. p. 139.

[37] UN General Assembly, Resolution 2603(XXIV) A Question of chemical and bacteriological (biological) weapons. 16 December 1969, A/RES/2603(XXIV)A.

[38] M. Dando and K. Nixdorff, ‘An Introduction to Biological Weapons’. In: Kathryn McLaughlin and

Kathryn Nixdorff (eds.), BioWeapons Prevention Project Biological Weapons Reader, Geneva, 2009 at p. 9.

[39] M. Cottier, ‘War Crimes: Article 5’, p. 420.

[40] Belgium, Draft Amendments to the Rome Statute on War Crimes, Amendment 2. 29 September 2009. The provisions of the amendment which pertained to chemical and biological weapons read: ‘xxvii) Using the agents, toxins, weapons, equipment and means of delivery as defined by and in violation of the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, London, Moscow and Washington, 10 April 1972’ and ‘xxviii) Using or engaging in any military preparations to use chemical weapons as defined by and in violation of the Convention on the Prohibition of the Development, Production,  Stockpiling and Use of Chemical Weapons and on Their Destruction, Paris, 13 January 1993.’ Some of the objections voiced by other delegations concerning this proposal was that by referring to the CWC and BWC, this would be tantamount to ‘compulsory universalization’ of those treaties. See Assembly of States Parties, Eighth Session, Report of the Bureau on the Review Conference, ICC-ASP/8/43. 15 November 2009, §36.

[41] K. Allen with S. Spence and R. Escariaza Leal ‘Chemical and biological weapons use in the Rome Statute – a Case for Change’, 14 Vertic Brief,  February 2011.

[42] K. Egeland, ‘Longing for Armageddon’, International Law and Policy Institute, WMD Project, Background Paper no. 16, 2015, available at http://nwp.ilpi.org/?p=3670.

[43] M. Crowley and M. Dando, Submission by Bradford Nonlethal Weapons Research Project to Foreign Affairs Select Committee Inquiry on Global Security: Non-Proliferation, 2008, pp. 12, available at: http://www.brad.ac.uk/acad/nlw/publications/BNLWRP_FAC071108MC.pdf.

[44] Tsuji, et al, ‘Research Strategies for Safety Evaluation of Nanomaterials, Part IV: Risk Assessment of Nanoparticles’, Toxicological Sciences 89(1), January 2006.

 [45] P. Guo, ‘RNA Nanotechnology: Engineering, Assembly and Applications in Detection, Gene Delivery and Therapy’, Journal of Nanoscience and Nanotechnology, 5(12), 2005.

[46] See generally, P. Dombrowski and E. Gholz, ‘Buying Military Transformation: Technological Innovation and the Defense Industry’, 2006; Henry C Bartlett, et al, ‘Force Planning, Military Revolutions and the Tyranny of Technology’, Strategic Review 24, Fall 1996, H. Nasu and T. Faunce, ‘Nanotechnology and the International Law of Weaponry: Towards International Regulation of Nano-Weapons’, Journal of Law, Information and Technology, Vol. 20, 2010.

[47] M. Wheelis and M. Dando, p. 560.

[48] K. Hoyt & S. G. Brooks, A Double-Edged Sword: Globalization and Biosecurity’, International Security, vol. 28 (3): 122-148, p. 128.

[49] See for example, M. Wheelis and M. Dando, Neurobiology: A Case Study of the Imminent Militarization of Biology’, International Review of the Red Cross, Vol.87 No.859, September 2005, pp. 562-3; ICRC, Biotechnology, Weapons and Humanity: An Informal Meeting of Government and Independent Experts’, Montreux, Switzerland, 23-24 September, 2002; M. J. Ainscough, Next Generation Bioweapons: Genetic Engineering and BW’, p. 253, April 2002, available at http://www.au.af.mil/au/awc/awcgate/cpc-pubs/biostorm/ainscough.pdf