Biotechnology, Weapons and Humanity: 23-24 September 2002

About Prof. Matthew Meselson

Matthew Meselson is the Thomas Dudley Cabot Professor of the Natural Sciences at Harvard University. He is recognized as one of the foremost experts in the field of biological weapons and has published extensively on this subject. His work was instrumental in leading the US Government to support the negotiation of the Biological Weapons Convention and the destruction of US biological weapon stocks. Professor Meselson was a leading commentator on reports of biological weapons use in Indochina in the 1970s and led international scientific efforts to investigate the release of anthrax from a previously secret biological weapons program at Sverdelovsk in the Soviet Union . Professor Meselson is the Co-director of the Harvard Sussex Program on CBW Armament and Arms Limitation and a member of the chemical and biological weapons working group of the Pugwash Movement.

Statement by Prof. Matthew Meselson

A draft convention to prohibit biological and chemical weapons under international criminal law

Any development, production, acquisition or use of biological or chemical weapons is the result of decisions and actions of individual persons, whether they are government officials, commercial suppliers, weapons experts or terrorists. The international conventions that prohibit these weapons, the BWC and the CWC, being directed primarily to the actions of states, address the matter of individual responsibility to only a limited degree.

Article IV of the BWC requires each state party to prohibit the development, production, stockpiling, acquisition and retention of biological weapons anywhere within its territory. Article VII of the CWC requires each state party to enact penal legislation applicable to acts committed in the territory of that state and also to acts committed by its nationals anywhere.
However the BWC and the CWC do not attempt to make the development, production, possession or use of biological and chemical weapons an international crime for which states establish jurisdiction over prohibited acts regardless of the place where they are committed or the nationality of the offender, nor do these treaties contain provisions dealing with the extradition of suspects.

Neither are these deficiencies remedied by the provisions applicable to biological and chemical weapons in the Convention for the Suppression of Terrorist Bombings, opened for signing in January 1998, or in the Statute of the International Criminal Court signed in Rome in July 1998. The Bombing Convention does not apply to the activities of military forces in the exercise of their official duties or to internal state acts — such as the use of CBW weapons by a leader against a population within his own state. Nor does the scope of either of these agreements extend beyond the actual use of CBW weapons to include, as do the BWC and the CWC, their development, production and possession.

What is needed is a new treaty, one that defines specific acts involving biological or chemical weapons as international crimes, like piracy or aircraft hijacking, obliging states either to prosecute or extradite offenders who are present in their territory. Treaties defining international crimes are based on the concept that certain crimes are particularly dangerous or abhorrent to all and that all states therefore have the right and the responsibility to combat them. Certainly in this category, threatening to the community of nations and to present and future generations, are crimes involving the weaponization of disease or poison and the hostile exploitation of biotechnology.

The Harvard Sussex Program, with advice from an international group of legal authorities, has prepared a draft convention that would make certain acts involving biological and chemical weapons crimes under international law. The proposed convention would make it an offence for any person, regardless of official position, to order, direct or knowingly to participate or render substantial assistance in the development, production, acquisition, stockpiling, retention, transfer or use of biological or chemical weapons or to threaten the use of such weapons or to create or retain facilities intended for the production of such weapons. Any person who commits any of the prohibited acts anywhere would face the risk of apprehension, prosecution and punishment or of extradition should that person be found in a state that supports the proposed convention.

The proposed convention would oblige each state party: (i) to establish jurisdiction with respect to the specified crimes extending to all persons in its territory, regardless of the place where the offence is committed or the citizenship of the offender, and (ii) to prosecute or extradite any such offender found in its territory or any other place under its jurisdiction. Decisions regarding sentencing, including consideration of the severity of the offence and of any mitigating circumstances, are left to individual states parties.

The same obligations, to establish criminal jurisdiction and to extradite or adjudicate, aut dedere aut judicare, are included in international conventions now in force for the suppression and punishment of international crimes including aircraft hijacking and sabotage (1970; 1971), crimes against internationally protected persons (1973), hostage taking (1979), theft of nuclear materials (1980), torture (1984) and crimes against maritime navigation (1988).
The proposed convention defines biological and chemical weapons as they are defined in the BWC and the CWC, on the basis of the general purpose criterion — and its definitions of prohibited acts are modeled closely on the definitions in these treaties. Commission of a prohibited act is defined as a crime only if committed “knowingly” and it is an admissible defence that the accused person “reasonably believed” that the conduct in question was not prohibited. The proposed convention also includes provisions requiring states parties to cooperate in investigations and to provide legal assistance to one another in the adjudication of offences.

One way forward would be for a group of states to submit the proposed convention or a similar draft in the form of a resolution for consideration by the UN General Assembly, seeking its referral to the UNGA Sixth (legal) Committee for negotiation of an agreed text. If the negotiated text receives the commendation of the General Assembly, the convention may then be opened for signature and ratification, leading to its entry into force. Adoption and widespread adherence to such a convention would create a new dimension of constraint against biological and chemical weapons by applying international criminal law to hold individual offenders responsible and punishable wherever they may be and regardless of whether they act under or outside of state authority. Such individuals would be regarded as hostes humani generis, enemies of all humanity. The norm against chemical and biological weapons would be strengthened, deterrence of potential offenders would be enhanced, and international cooperation in suppressing the
prohibited activities would be facilitated.