Introductory Workshop on the 8 th BWC Conference

Introductory Workshop on the 8 th BWC Conference Geneva 27 th June 2016 Biological weapons under international law: From the 1925 Geneva Protocol to the Biological Weapons Convention Dr Caitríona Mc. Leish The Harvard Sussex Program SPRU University of Sussex

Organisation of talk 1. The 1925 Geneva Protocol and its antecedents 2. Prohibitions against the use of any type of weapon whatsoever against certain types of target 3. Prohibitions against the production possession of biological weapons and 4. Some relevant international rules since the BWC

1. The 1925 Geneva Protocol and its antecedents

Antecedents to the Geneva Protocol The 1899 Hague Regulations on the Laws and Customs of War on Land Article 23(e) “It is especially prohibited … to employ poison or poisoned arms” The 1907 Hague Regulations Article 23(e) “It is especially forbidden … to employ poison or poisoned weapons” The Leiber Code, 1863, Article 70: “The use of poison in any manner, be it to poison wells, or food, or arms, is wholly excluded from modern warfare. He that uses it puts himself out of the pale of the law and usages of war. ” The Brussels Declaration, 1874, Article 13(a): “employment of poison or poisoned weapons” are “especially forbidden”

Original UN document, courtesy of The Sussex Harvard Information Bank

“…The High Contracting Parties therefore agree absolutely to prohibit the export from their territories of any such asphyxiating, poisonous or other gases, and all analogous liquids, intended or designed for use in connection with operations in war…” Senator Theodore Burton, A. 13. 1925. IX, 5 th May 1925 (emphasis added)

“taking into consideration the fact that the means of bacteriological wars constitute a shameful weapon of modern civilization, the Polish delegation suggests applying the decisions of the conference on chemicals weapons to the bacteriological ones, too” “the results of bacteriological warfare would certainly exceed the horror of all the devastation caused by the use of chemical methods in warfare” General Kazimierz Sosnkowski, circa 1925 Courtesy of Polish National Archive General Kazimierz Sosnkowski, Proceedings of the Conference for the Supervision of the International Trade in Arms and Ammunition and in implements of

…has been justly condemned by the general opinion of the civilised world …has been declared in Treaties to which the majority of Powers of the world are Parties …this prohibition shall be universally accepted… binding alike the conscience and the practice of nations Original HM Stationary Office document, courtesy of The Sussex Harvard Information Bank

Total number of High Contracting Parties to the Geneva Protocol each decade 160 Number of High Contracting Parties 140 120 100 80 60 40 20 0 1920 1930 1940 1950 1960 1970 Decade 1980 1990 2000 2010 2020

2. Prohibitions against the use of any type of weapon whatsoever against certain types of target

General laws of war Principle of immunity of the civilian population Combatant and non combatant distinction 1949 Geneva Conventions and 1977 Additional Protocols: protects those not taking part in the hostilities (civilians, health workers and aid workers) and those who are no longer participating in the hostilities, (wounded, sick etc soldiers and POWs) Article 3 – non international armed conflicts Use of poison and poisoned weapons Article 23 (e) of the Hague Conventions of 1899 and 1907 “It is especially prohibited … to employ poison or poisoned arms” “It is especially forbidden … to employ poison or poisoned arms”

3. Prohibitions against the production and possession of biological weapons

All known explicit reservations since 1925 Key High Contracting Party Not a High Contracting Party

Known explicit reservations up to 2006 Key High Contracting Party Not a High Contracting Party

…use in war… Original HM Stationary Office document, courtesy of The Sussex Harvard Information Bank

Original UN document, courtesy of The Sussex Harvard Information Bank

Original HM Stationary Office document, courtesy of The Sussex Harvard Information Bank

‘Negative’ obligations of the BWC Article 1 never in any circumstances to develop, produce, stockpile or otherwise acquire or retain 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; weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict Article 2 undertakes to destroy, or to divert to peaceful purposes, all agents, toxins, weapons, equipment and means of delivery which are in its possession or under its jurisdiction or control Article 3 undertakes not to transfer to any recipient whatsoever, directly or indirectly, and not to assist, encourage, or induce any State, group of States or international organization to manufacture or otherwise acquire, any of the agents, toxins,

‘Positive’ obligations of the BWC Article 4 must, in accordance with its constitutional processes, take any necessary measures to prohibit and prevent the development, production, stockpiling, acquisition or retention of agents, toxins, weapons, equipment and means of delivery within its territory, under its jurisdiction or under its control anywhere Article 5 undertake to consult one another and to cooperate in solving any problems which may arise in relation to the objective or the application of the Convention Article 7 undertakes to provide assistance to any Party which so requests, if the Security Council decides that such Party has been exposed to danger as a result of violation of the Convention Article 10 undertake to facilitate the fullest possible exchange of equipment, materials and information relating to the use of agents and toxins for peaceful purposes

4. Since entry into force of the BWC

Prosecutor v Tadic, Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction. No. IT-94 -I-AR 72, 2 nd October 1995 “What is inhumane, and consequently proscribed, in international wars, cannot but be inhumane and inadmissible in civil strife. This fundamental concept has brought about the gradual formation of general rules concerning specific weapons, rules which extend to civil strife the sweeping prohibitions relating to international armed conflicts. ” International Convention for the Suppression of Terrorist Bombings 1997: 168 States Parties, 58 Signatories ‘‘lethal device’’ includes chemical, biological and radioactive weapons Statute of the International Criminal Court

Contact details and acknowledgements Dr Caitríona Mc. Leish c. a. mcleish@sussex. ac. uk @camcleish