First Meeting of Experts of States Parties to the Biological and Toxin Weapons Convention, Geneva, 18 – 29 August 2003
This ICRC's statement highlights the calls made in its public appeal on "Biotechnology, Weapons and Humanity" on preventing poison and the deliberate spreading of disease, and outlines what it is doing these ends. It also focuses on effective implementation of national legislation and the need for adequate mechanisms to secure biological materials that could be turned to hostile purposes.
Advances have occurred in the biosciences that appeared almost unimaginable upon adoption of the BWC thirty years ago and it is clear that these developments will continue apace in the 21st century.
As a humanitarian organisation working throughout the globe the International Committee of the Red Cross is conscious of the great benefits that advances in the biosciences have brought and may bring to humanity. Better medicines, the improvement of food production or delivery of cheaper and more effective vaccines against the endemic diseases that inevitably accompany war, for instance, have considerable potential to reduce human misery.
However, the ICRC is concerned that recent, extraordinary advances in biotechnology may not be subject to adequate controls and oversight, either at the national or international levels, to ensure that misuse for hostile purposes is prevented.
The ICRC has long held poisoning and the deliberate spread of disease to be abhorrent and criminal. As long ago as 1918 the ICRC launched an "appeal " in reaction to the use of poison gas in the First World War. This appeal helped to bring about the 1925 Geneva Protocol banning use of these weapons. Similarly, the ICRC supported the conclusion of the 1972 Biological and Toxin Weapons Convention and the 1993 Chemical Weapons Convention.
A generation after the signing of the Biological and Toxin Weapons Convention, the world has changed greatly, as have the technologies and degree of risk posed by new developments in the life sciences. But the biological disarmament regime has not been further strengthened to ensure it keeps abreast with these new developments.
Scientific advances have all too often been misused in the past, and history teaches us that new developments in biotechnology will almost certainly be misused if urgent action is not taken.
These deep concerns led the ICRC to launch an " Appeal on Biotechnology, Weapons and Humanity " in September 2002 aimed at stakeholders in the future development of biotechnology, including government, industry, academia, scientific and medical associations and civil society. The ICRC's initiative:
Draws attention to potential risks brought by advances in technology that could be turned to hostile purpose;
Underscores the legal rules – both national and international – which apply to poison and deliberate of disease; and
Identifies the responsibilities of governments, industry and the scientific community to ensure that such advances are used only for the benefit of humanity.
In this context, the ICRC welcomes the examination by governments of specific preventive measures through the Expert Meeting process agreed at the Fifth Review Conference. The adoption of national measures necessary to implement the BWC's prohibitions, including the enactment of penal legislation and ensuring security and oversight of pathogens, are two important practical areas ripe for attention.
These meetings will consider, albeit separately and in a non-binding manner, many of the preventive actions proposed in the ICRC's appeal. Given that collective decisions on how to proceed will await the 2006 BWC Review Conference, concerted and c oordinated national actions to prevent misuse of biological agents and emerging technologies are urgent and crucial.
Article IV of the BWC requires each State Party to " take any necessary measures " to prohibit and prevent the acts banned by Article I. These acts include the development, production, transfer and stockpiling of biological weapons. The use of these weapons is prohibited in the 1925 Geneva Protocol and under customary international law.
It should also be noted that the Rome Statute of the International Criminal Court expressly recognizes as war crimes the use in international armed conflict of " poison or poison weapons " (art. 8.2.b.xvii) and of " asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices " (art. 8.2.b.xviii). In addition, to the extent that the use of biological weapons amounts to " violence to life and person, in particular murder, cruel treatment and torture " (see e.g. art. 8.2.a.i-iii, 8.2.c.i) or " intentionally directing attacks against the civilian population " (art. 8.2.b.i, 8.2.e.i), it would also constitute a war crime in both international and internal armed conflicts. Furthermore, use of biological weapons in peacetime or in wartime as part of a widespread or systematic attack directed against any civilian population would constitute a crime against humanity (art. 7).
In any case, the extreme gravity of the acts prohibited by the 1925 Geneva Protocol and the BWC calls for the severest sanctions. At the national level, this can only mean providing for individual criminal responsibility for those responsible for such acts. This requires the adoption of legislation providing penal sanctions appropriate to the gravity of the offence. In addition, each State should apply such measures to a cts committed by its nationals outside its territory. Only by adopting such measures can a State unambiguously demonstrate its commitment to the robust enforcement of the Biological Weapons Convention " within its territory, or under its jurisdiction or under its control anywhere " , as required by Article IV.
Moreover, because of their extreme gravity, the acts prohibited by the 1925 Geneva Protocol and the BWC are not only the concern of the States directly affected, but of each State and of the international community as a whole. Consequently, each State should consider exercising universal jurisdiction over the prohibited acts. Universal jurisdiction refers to the assertion of jurisdiction over offences regardless of the place where they were committed or the nationality of the alleged perpetrator or victim. If a State cannot try the alleged perpetrator itself, it should extradite the person to a State that is willing and able to do so. This would ensure that there is no impunity for those responsible for such heinous crimes. It should be recalled that States are already required to exercise universal jurisdiction in respect of " grave breaches " to the 1949 Geneva Conventions and their Additional Protocol I of 1977, which refer to acts committed in situations of armed conflict against protected persons such as wilful killing, torture or inhuman treatment including biological experiments, and making the civilian population or individual civilians the object of attack. Use of biological weapons amounting to such " grave breaches " would thus require the assertion of universal jurisdiction.
In the same vein, it is crucial for each State to ensure that its penal legislation applies without distinction to all persons. In other words, an accused's official position or capacity (as for example head of State or government employee) must not rel ieve the person of criminal responsibility nor mitigate punishment. We note that the Rome Statute of the International Criminal Court also excludes such immunities from prosecution.
However, getting appropriate legislation on to the statute books is only half the battle. If the BWC is to be respected, national legislation must be enforced, and this requires States to ensure that prosecutions are swiftly brought when it is violated.
The ICRC has considerable experience in advising governments on the development of implementing legislation for international humanitarian law norms. Through its Advisory Service on International Humanitarian Law, which operates in all regions of the world, the ICRC is available to assist States in the development of criminal legislation for implementation of the BWC and the 1925 Geneva Protocol.
The ICRC welcomes the studies published by the Department of Peace Studies of the University of Bradford in March 2003 as well as by VERTIC (the Verification Research, Training and Information Centre), on national legal measures to implement the Biological Weapons Convention. These studies will serve as useful tools to States assessing the overall implementation of Article IV of the Convention and in developing their own legislation. The VERTIC study in particular is important in making transparent how the Convention is being applied in a variety of national legal systems. The ICRC encourages States Parties to assist VERTIC in its information gathering, and to adopt national BWC legislation where it does not yet exist.
The second type of national measure to be considered by this group is mechanisms to establish and maintain the security and oversight of pathogenic organisms and toxins. Although the ICRC has little direct expertise in this field, we consider effective controls on biological agents and technologies with the potential for abuse to be essential as elements of a'web of prev ention'.
The ICRC appreciates that existing national systems vary, and we do not advocate a'one size fits all'approach to this issue. But it is crucial that the measures States adopt, in partnership with their industries and with academic, scientific and medical institutions, form part of a coherent approach at the international level. Further loopholes that those willing to deploy biotechnology for hostile purposes can exploit should not be created. This group can contribute to these ends.
The ICRC believes that the States Parties are now at an important juncture; one that has important implications for preventing the deliberate spread of disease in the 21st century. These expert meetings, and the next Review Conference in 2006, represent a turning point. They offer the opportunity to draw a line under the past, and to move on to future-oriented efforts to consider the best ways in which to strengthen the Convention and the taboo against hostile use of biotechnology and the life sciences. It is no exaggeration to state that many lives depend on the success of this effort.
Following on from its Appeal last year the ICRC is undertaking a number of initiatives to complement the work of the Biological Weapons Convention. The ICRC is convening a lunchtime presentation on 27 August on the margins of this meeting to elaborate on the need for complementary actions to thwart hostile uses of biotechnology through a'web of prevention'. And, on 1 September the ICRC will hold an open-ended meeting with States on the possibility of initiating a process to achieve a Ministerial-level Declaration on preventing the misuse of biotechnology for hostile purposes.
The ICRC looks forward to working with delegations both in the context of this Group and in efforts to engage other actors in reaffirming and strengthening prohibitions on poisoning and the deliberate spread of disease.