The Impact of the Use of Biological Weapons in Warfare: CO-VID 19 as a glimpse

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-Memabasi Udowoima1 and Inemesit Udongwo 2

“As history tells us, virtually no nation with the ability to develop weapons of mass destruction

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has abstained from doing so. And the Soviet Project shows that international treaties are
basically useless unless an effective verification procedure is in place”

- Friedrich Frischknecht3

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”Recent epidemics clearly demonstrate the humanitarian and health consequences that a
naturally-occurring biological pathogen can unleash. A deliberately-released pathogen could

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cause more human suffering than a naturally-caused epidemic”

ABSTRACT
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-High Representative for Disarmament Affairs4
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The Coronavirus has brought about a disruption in nearly every facet of life. The ease of the
spread of the virus has made it even deadlier. The virus has been compared to the Black Plague, a
disease that was said to have killed about a third of the world’s population. The Black Plague was
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spread by the Mongol Forces as a biological weapon into Ukraine causing a spread throughout
Europe. The Coronavirus similarly has caused the death of millions throughout continents
causing some to suspect that it is a biological weapon. This article explores the possibility that
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the Coronavirus is a biological weapon and the legal regime governing the use of biological
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1 LLB and Barrister and Solicitor of the Supreme Court of Nigeria memaudowoima@gmail.com
2 LLB and Barrister and Solicitor of the Supreme Court of Nigeria inemesitudongwo@yahoo.com
3 Friedrich Frischknecht “The history of biological warfare: Human experimentation, modern nightmares
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and lone madmen in the twentieth century” (2010) 4 EMBO <4-embor849.pdf> Accessed 11 April 2020
4 High Representative for Disarmament Affairs, “Global Biosecurity Challenges: Problems and
Solutions” (High Representative for Disarmament Affairs Second International Conference, Sochi, June
2019)
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 weapons. The article ends by giving recommendations to prevent the use of biological weapons

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and punish the perpetrators of the use of biological weapons.

KEY WORDS: biological weapons; Coronavirus; Convention; Implementation Support Unit

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1.0 INTRODUCTION

Through many centuries, mankind has engaged in various means of warfare. Contrary

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to the expectations of some, civilization and education has not brought about peace but
has led to the development of more sinister methods of engaging in warfare: chemical,

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biological and nuclear weapons. The Syrian Civil War has of recent exposed the horrors
of chemical weapons and its devastating effect on the human populace. However, the

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Coronavirus pandemic has shown the terrifying effects of biological weapons. It is
against this backdrop that this article is written: to show the impact of biological
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weapons in warfare with CO-VID 19 pandemic as a glimpse.

2.0 HISTORICAL ANTECEDENTS OF THE USE OF BIOLOGICAL WEAPONS

2.1 SMALLPOX
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Smallpox is an acute, highly contagious disease caused by a poxvirus, the

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deadliest strain of which is called Variola major. In the 18th century, Britain fought
France and its allies for possession of a territory (what was to become Canada) during
the French and Indian Wars (1754-63). Sir Jeffery Amherst who was the Commander-in-
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Chief of the British forces in North America, at the time of the Pontiac rebellion of 1763,
wrote to Colonel Henry Bouquet suggesting he send smallpox among the disaffected
tribes of Indians. This was to be a strategy to reduce their number. The colonel
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suggested he would try to inoculate the Native American tribe with infected blankets.
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 Smallpox destroyed the Native Americans, who had never been exposed to the disease

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before and had no immunity.

The success of this probably encouraged the use of smallpox as a weapon during

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the American Revolutionary War where some civilians were used to infect the
American troops after they (the civilians) were immunized. A major smallpox epidemic
leading to the death of 10,000 soldiers was the end result 5 ”.

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2.2 JAPAN‟S UNIT 731

Lt. General Shiro Ishii led the Japanese infamous biological warfare Unit 731 who used
plague-infected flies and fleas enclosed with cholera to infect the population in

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China6 . The military in Japan distributed insects by spraying them from airplanes and

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dropping ceramic bombs they had developed which were filled with mixtures
containing diseases that could affect humans, animals, and crops 7 . This resulted in
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deadly epidemics which approximately killed an estimated 200,000 to 500,000 Chinese 8 .
Additional accounts show that civilians were also infected through the distribution of
plague-infested foodstuffs, such as dumplings and vegetables 9 . The Japanese also
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5 Colette Flight, “Silent Weapon: Smallpox and Biological Warfare”, BBC Current Affairs (London, 17
February 2011) <bbc.co.uk/history/worldwars/coldwar/pox_weapon_01.shtml> accessed 1 May, 2020
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6 Lockwood, Jeffrey A. "Six-legged soldiers", The Scientist (Canada, 23 October 2008) <http://www.the-
scientist.com/news/print/55104/> Accessed 5 May 2020
7 Lockwood, Jeffrey A. "Bug Bomb", The Boston Globe (Boston, 21 October 2007),
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http://www.boston.com/news/globe/ideas/articles/2007/10/21/bug_bomb/ Accessed 4 May, 2020.

8 Novick, Lloyd and Marr, John S. Public Health Issues Disaster Preparedness, ( Jones & Bartlett Publishers,
2001) (ISBN 0763725005)
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https://books.google.com/books?id=AiWKXMn66YcC&pg=PA87&dq=%22entomological+warfare&clie
nt=firefox-a Accessed 4 May, 2020
9 Sheldon H. Harris Factories of Death: Japanese Biological Warfare, 1932-45, and the American Cover-up (Taylor
& Francis, 2002). ISBN 978-0-203-43536-6
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 engaged biological warfare and during the Changde Chemical Weapon attacks, by

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spreading infected fleas in Zhejiang province, cholera, dysentery, and typhoid were
employed also10 .

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2.3 THE AUM SHINRIKYO‟S BIOLOGICAL WEAPONS TERRORISM IN JAPAN

Although some of Aum‟s efforts are best characterized as science fiction, its pursuit of
chemical and biological weapons was substantially grounded in science. It is important

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to point out that Aum Shinrikyo‟s cult started off as a peaceful group 11 before gradually
turning into a horrific cult.12 His cult had about twenty-four (24) properties in Japan and
foreign offices in Russia, The United States, and Germany13 . The cult‟s leader, Shoko

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Asahara predicted a coming apocalypse and made them the messiah‟s to avert it. He
convinced the cult to fast track the apocalypse by launching attacks, including with
biological weapons. er
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History reports that Aum attempted to obtain and distribute two, B. anthracis and
botulinum neurotoxin (BoNT), obtained from the bacterium Clostridium botulinum. Cult

10 Kristov, Nicholas D. "Unmasking Horror: Japan Confronting Gruesome War Atrocity". The New York
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Times (New York, March 17, 1995) http://nytimes.com Accessed 5 May, 2020.
11 The group evolved from a yoga studio founded in Tokyo in the mid-1980s by Chizuo Matsumoto (who
later renamed himself Shoko Asahara), a semi-blind acupuncture, massage, and Chinese medicine
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practitioner
12 Aum appears to refer to the “ohm” sound yoga practitioners make; Asahara (then Matsumoto) called
his yoga school Aum, Inc. Shinrikyo means teaching of truth. An earlier iteration of the group was called
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Aum Shinsen no Kai, or Aum Mountain Hermit‟s Society, based on a prophecy that survivors of the
coming apocalypse would be benevolent shinsen, or mountain hermits.
Ian Reader, Religious Violence in Contemporary Japan: The Case of Aum Shinrikyo (Honolulu, University of
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Hawaii Press, 2000) p. 89.

13 Senate Government Affairs Permanent Subcommittee on Investiga tions, Appendix C: Aum Shinrikyo
Facilities in Global Proliferation of Weapons of Mass Destruction: A Case Study on the Aum Shinrikyo (October
31, 1995) Available at www.fas.org/irp/congress/1995_rpt/aum/index.html. Accessed 2 May, 2020
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 members gathered soil from an area that contains the bacterium with the intention of

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culturing it14 . They cultivated material in two large, homemade fermenters and it was
reported that at least some of the product was contaminated with Bacillus (Subtilus)
Natto, the anaerobic bacterium used in Japan to ferment soybeans. However, the cult‟s

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crude approach to the production of the bacterium was unsuccessful.

The cult disseminated large volumes of liquid from trucks fitted with crude spray
devices in early 1990, deploying these in the vicinity of two U.S. Naval bases, the

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Japanese Diet, the Imperial Palace, the Narita airport, and the headquarters of a rival
religious group 15 . No one was affected (including cult members who reportedly
accidentally exposed themselves during the dissemination process), and the ir attempt

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went undetected by legal authorities. In 1992 the cult reinvigorated its efforts with a

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new focus on B. anthracis and when these efforts failed to be effective, the group again
in 1993 attempted to produce BoNT and used little quantities of the material produced
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to unsuccessfully attack individuals and a subway station16 .

In 1993 the cult made an attempt to mass-produce B. anthracis without evidence that it
had successfully obtained a pathogenic strain and the material was prepared in
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homemade fermenters with no efforts to purify the 10-20 metric tons of liquid
produced, which was later dispersed using a crude sprayer. The first experiment was
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14 What was gathered remains unclear, but a key cult member stated that the cult worked on at least five
strains or variants of C. butulinum, although some material may later have been obtained from a South
American culture collection. How the cult isolated and identified the strains on which it supposedly
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worked remains unclear.

Richard Danzig et al., Aum Shinrikyo: Insights Into How Terrorists Develop Biological and Chemical
Weapons (Washington, DC: Center for a New American Security, 2011).
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15 Richard Danzig et al., Aum Shinrikyo: Insights Into How Terrorists Develop Biological and Chemical
Weapons (Washington, DC: Center for a New American Security, 2011).
16 Richard J. Danzig, A Policymaker’s Guide to Bioterrorism and What to Do About It (Washington, DC:
National Defense University, 2009)
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 from the roof of a cult building based in a residential neighborhood and later from a

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truck. Some animals such as birds and neighborhood pets died, though it was not
established whether the death was caused by the substance released. People who lived
around the environment complained of the odor and jellylike substance that dropped

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down in the vicinity, causing the police to investigate and gather examples, but these
were not tested until after the 1995 sarin subway attacks 17 .

2. 4 BHAGWAN SHREE RAJNEESH

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In 1984, the well-known Indian guru Bhagwan Shree Rajneesh with massive followers
from Oregon spearheaded an attack that sickened almost 800 people with typhoid

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fever. His cult attempted to poison the local water supply and failed, they then further
introduced bacteria into salad bars and other restaurant food repositories. Their motive
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was to influence the local election results by making the voters sick, thereby preventing
residents from voting. Although no one was killed, 43 people were hospitalized, and
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the wrongdoers were prosecuted 18 .

3.0 THE LEGAL REGIME GOVERNING THE USE OF BIOLOGICAL WEAPONS

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The Statute of the International Court of Justice 19 has listed the sources of international
law to be:
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(a) International conventions, whether general or particular, establishing rules

expressly recognized by the contesting states;
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(b) International custom, as evidence of a general practice accepted as law;

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17 Raymond A. Zilinskas, Biological Warfare: Modern Offense and Defense (Lynne Rienner, 2000), p. 81;
Danzig, p. 25
18 https://www.historyofvaccines.org/content/articles/biological-weapons-bioterrorism-and-vaccines
19 Article 38
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 (c) The general principles of law recognized by civilized nations;

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(d) Subject to the provisions of Article 59, judicial decisions and the teachings of the
most highly qualified publicists of the various nations, as subsidiary means for the

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determination of rules of law.

In writing this article however, particular attention would be paid to international

conventions. This is due to a plethora of reasons, not the least that treaties are entered

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into with the consent of the parties to this agreement20 .

3. 1 THE CONVENTION (IV) RESPECTING THE LAWS AND CUSTOMS OF WAR

ON LAND21

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The Hague Conventions were a codification of the customary international law

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binding on all the nations 22 . This Convention expressly stated that: “the right of
belligerents to adopt means of injuring the enemy is not unlimited” 23 . Article 23 of same
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further provides that:

“...it is especially forbidden

a) To employ poison or poisoned weapons”

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20 This is the reason why some writers view treaties as the most important source of international law.
Malcolm Shaw, “International Law’’ (6th ed. United Kingdom, Cambridge University Press, 2008) pg. 94.
D. J Harris however seems to be of a different view when he said that treaties are not formal sources of
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law but are more obligations than law. “Cases and Materials on International Law”( 6 th ed. Thomson, Sweet
and Maxwell) pg. 43
21 Hereinafter referred to as The 1907 Hague Convention
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22 Michael .P. Scharf, “Clear and Present Danger: Enforcing the International Ban on Biological and
Chemical Weapons Through Sanctions, Use of Force, and Criminalization” (1999) 20 MICH. J. INT’L L.
477 Accessed from <https://repository.law.umich.edu/mjil/vol20/iss3/3> April 14, 2020 8:39pm
23 Article 22 of the 1907 Hague Convention
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 e) To employ arms, projectiles, or material calculated to cause unnecessary suffering”

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Article 2 of the 1907 Hague Convention provided that: “The provisions…referred to in
Article 1 as well as in the present Convention, do not apply except between Contracting powers,

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and then only if all belligerents are parties to the Convention”. However, States that were not
party to the Convention are bound by its provisions as it was a codification of
customary international law24 .

World War 1 showed the inefficacy of the 1907 Hague Convention 25 to ensure

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compliance of State Parties to the provisions. This led to the promulgation of what is
known today as the 1925 Geneva Protocol.

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3.2 THE
ASPHYXIATING, POISONOUS
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1925 PROTOCOL FOR THE PROHIBITION OF THE USE OF
OR OTHER GASES AND OF
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BACTERIOLOGICAL METHODS OF WARFARE

The 1925 Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other
Gases and of Bacteriological Methods of Warfare 26 was a codification of the existing
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customary international law27 . It was the first international instrument that addressed
biological weapons distinctly from chemical weapons 28 . Although the Protocol was
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contained in a single page and

24 North Sea Continental Shelf Case ICJ Reports, 1969, pp. 3, 25; 41 ILR, pp. 29, 54.
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25 Another flaw of the 1907 Hague Convention was that it did not make provision for internal conflicts.
26 Hereinafter referred to as The 1925 Geneva Protocol
27 Prosecutor v. Tadíc, Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction No.
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IT-94-I-AR72, 2 October 1995

28 Kara Allen, Scott Spence and Rocio Escauriaza Leal ”Chemical and Biological Weapons use in the Rome
Statute: a case for change” (2011) VERTIC BRIEF
https://www/google.com/url?q=http://www.vertiv.org/media/assets/Publications/VB%252014.pdf
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 The Protocol declared: “That the High Contracting Parties, so far as they are not already

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Parties to Treaties prohibiting such use, accept this prohibition, agree to extend this prohibition
to the use of bacteriological methods of warfare and agree to be bound as between themselves
according to the terms of this declaration” This declaration, as wonderful as it seems,

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restricted the prohibition against the use of biological weapons between the State
parties. This does not take cognizance of internal armed conflicts where a State party
may use biological weapons against its own citizens.

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The 1925 Geneva Convention was plagued with States making reservations to the
interpretation of the treaties. Reservations to treaties are the manifestations of a State
Sovereignty and limit the extent to which a State party may be bound to the provisions

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of a treaty29 . In the instance of the 1925 Geneva Protocol, the reservation of State parties
was to the effect that they interpret the Protocol in such a way that only the first use of
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biological weapons is prohibited 30 . In other words, the reservations allowed for
retaliation to the use by an enemy nation. There were also reservations to the use of
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biological weapons against non-parties to the Protocol 31 .

The 1925 Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other
Gases and of Bacteriological Methods of Warfare made a weak attempt at ensuring
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compliance to the 1925 Geneva Convention by stating that:

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&sa=U&ved+2ahUKEwiqrcaht9voAhUCZxUIHSVpDqIQFjAKegQIBRAB&usg=AOvVaw3dLG6qGnwY
SPf3GQom5he_ Accessed April 11, 2020 1:01pm
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29 Memabasi .E. Udowoima, “State Sovereignty in the International Scene: Actual or Rhetoric?”(2017)
unpublished. Pg. 194
30 30 Boudewijn de Jonge, “A Socio-Legal Analysis of the Failed Establishment of the Organization for the
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Prohibition of Biological Weapons” (2006) Institutional governance and reform

<https://web.archive.org/web/20070621042913/http://boudewijndejonge.googlepages.com/Institution
al_governance_OPBW.pdf.> Accessed April 11, 2020
31 Michael .P. Scharf ibid pg. 481
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 “The High Contracting Parties will exert every effort to induce other States to accede to the

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Present Protocol.” But the nature of the inducement is not stated.

3.3 THE CONVENTION ON THE PROHIBITION OF THE DEVELOPMENT,

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PRODUCTION AND STOCKPILING OF BACTERIOLOGICAL (BIOLOGICAL)
AND TOXIN WEAPONS AND ON THEIR DESTRUCTION32

The Biological Weapons Convention was the first multilateral treaty to ban a class of
weapons33 . It entered into force on the 26th day of March 1975 and has been said to be

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an improvement on the 1925 Geneva Convention 34 . It has as its objective:

“To achieving effective progress towards general and complete disarmament, including the

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prohibition and elimination of all types of weapons of mass destruction, and convinced that the

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prohibition of the development, production and stockpiling of chemical and bacteriological
(biological) and toxin weapons and on their destruction”35
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In seeking to achieve this objective, Article 1 provides that

“Each State Party to this Convention undertakes never in any circumstances to develop,
produce, stockpile or otherwise acquire or retain:
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32 Hereinafter referred to as The Biological Weapons Convention

33 Biological Weapons: The Biological Weapons Convention
https://www.un.org/disarmament/wmd/bio/;
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Alex Spelling and Brian Balmer, “Remembering an overlooked treaty” The Guardian, (London, March
2015) <https://www.theguardian.com/science/political-science/2015/mar/26/remembering-an-
overlooked-treaty> Accessed 13th day of April 2020.
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34 Friedrich Frischknecht supra. This is especially so as Article VIII of the Biological Weapons
Convention states to the effect that it does not seek to limit or detract from the obligations assuming
under The 1925 Geneva Convention
35 The Preamble to The Biological Weapons Convention
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 i) Microbial or other biological agents36 , or toxins whatever their origin or method of

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production, of types and in quantities that have no justification for prophylactic,
protective or other peaceful purposes
ii) Weapons, equipment or means of delivery designed to use such agents or toxins for

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hostile purposes or in armed conflict.

At a first glance, this provision seems to fulfill the objective but the loophole in this
Article is made manifest with a cursory study of the history of International Law which

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shows that in certain instances, the line distinguishing protective from hostile purposes
is often blurred 37 .

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Although individual responsibility has become firmly rooted in international
humanitarian law and human rights law, the Biological Weapons Convention is state-

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centric38 . This is problematic because this does not take into account the use of
biological weapons by terrorist organizations. Although, it may be argued that Article
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IV of the Convention has dealt with this problem by stating that:

“Each State party to this Convention shall in accordance with its constitutional processes, take
any necessary measures to prohibit and prevent the development, production, stockpiling,
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acquisition or retention of the agents, toxins, weapons, equipment and means of delivery
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36 Jorge Morales Pedraza has criticized the BWC because it neither gives a definition of a biological
weapon or agent nor a list of prohibited biological weapons . Jorge Morales Pedraza “The Need to
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Establish the Organization for the Prohibition of Biological Weapons: A Proposal for the Future”(2005)
Public Organization Review: A Global Journal Volume 5, Issue 1 pg. 3
37 Michael .P. Scharf supra pg. 483
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38 38 Boudewijn de Jonge, “A Socio-Legal Analysis of the Failed Establishment of the Organization for the
Prohibition of Biological Weapons” (2006) Institutional governance and reform,
<https://web.archive.org/web/20070621042913/http://boudewijndejonge.googlepages.com/Institution
al_governance_OPBW.pdf.> Accessed April 11, 2020 pg. 3
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 specified in Article 1 of the Convention, within the territory of such State, under its jurisdiction

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or under its control anywhere”

This does not deal with situations where the offender is present in a State lacking

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jurisdiction to prosecute or is complicit with the offender 39 . This is perhaps why the
International Committee of the Red Cross in its Advisory Service suggested that in
addition to penal legislations envisaged by Article IV of the Biological Weapons
Convention, each State party should apply such measures to acts committed by

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nationals outside its territory 40 . In assuming jurisdiction based on nationality and not
merely territorial, this problem is solved.

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In comparison with its sister Convention41 , the Biological Weapons Convention
does not have any implementing or verification agency42 to ensure compliance with its
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provisions. In the wake of the recent pandemic, its absence is even more glaring. While
it is still in the realm of speculation as to whether China intended the Coronavirus to
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39 Michael Scharf pf. 500
40 https://www.icrc.org/en/document/1972-convention-prohibition-bacteriological-weapons-and-their-
destruction-factsheet. Accessed April 14, 2020 7:21pm
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41 The Convention on the Prohibition of the Development, Production and Stockpiling and Use of
Chemical Weapons and on Their Destruction hereinafter referred to as The Chemical Weapons
Convention
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42 The absence of an implementing agency is probably a cause for the class actions within the United
States against China for causing the spread of the Coronavirus. However, there seems to be a general
consensus among jurists that such action would fail because of the Foreign Sovereign Immunities Act.
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Chimène Keitner “Don‟t Bother Suing China for Coronavirus” Just Security (New York, April 2020)
https://www/justsecurity.otg/69460/dont-bother-suing-china-for-coronavirus/ Accessed April 16, 2020
6:03pm; Joshua Abhay Patnigere, “Coronavirus Outbreak: Beijing can be Prosecuted under
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International Laws for „under-reporting‟ virus threat”. Firstpost (India, March 2020)
<https://www.firstpost.com/india/coronavirus-outbreak-beijing-can-be-prosecuted-under-
international-laws-for-under-reporting-virus -threat-8200871.html/amp>
Accessed April 16 2020 6:15pm
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 become an economic weapon43 , the virus having been said to have emanated from a

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leakage from the Wuhan Institute of Virology and which the United States embassy had
earlier given a warning about44 , the present situation would have been prevented if
there was an effective verification agency in place.

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In its place, Articles VI as well as Articles VII has stated that in the event of any breach
of its provisions, a State Party may lodge a complaint with the Security Council 45 , Such
a complaint “should include all possible evidence 46 confirming its validity, as well as a

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request for its consideration by the Security Council” 47 . This raises some issues:

43 India has accused China of using the Coronavirus as a tactic to become an economic world power.

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44 Gordon .G. Chang “China falsely blames US for coronavirus pandemic” Fox News (New York, March
2020) https://www.foxnews.com/opinion/gordon-g-chang-china-falsely-blames-us-for-coronavirus-

at Wuhan lab studying bat coronavirus”

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pandemic/ Accessed April 14, 2020 2;30pm; Josh Rogin “State Department cables warned of safety issues
The Washington Post (Washington DC April 2020)
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https://www.washingtonpost.com/opinions/2020/04/14/state-department-cables-warned-safety-
issues-wuhan-lab-studying-bat-coronaviruses/ April 15, 2020 2:00pm
45 Boudewijn de Jonge, “A Socio-Legal Analysis of the Failed Establishment of the Organization for the
Prohibition of Biological Weapons” (2006) Institutional governance and reform
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<https://web.archive.org/web/20070621042913/http://boudewijndejonge.googlepages.com/Institution
al_governance_OPBW.pdf.> Accessed April 11, 2020 has suggested that General Assembly Resolutions
might also be a means of addressing allegations of contravention
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46 In BWC/CONF.VIII/PC/WP.10, “Possibilities for strengthening the international community’s ability to

investigate alleged use”, it is observed that “there is no requirement for such an investigation, and no
common understanding concerning the amount of evidence that would be required to galvanize Security
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Council action”. Graham S. Pearson and Nicholas A. Sims “Report from Geneva: The Biological Weapons
Convention Preparatory Committee Meeting April and August 2016”(2016) Review No. 45
47 UNSC Resolution 687, para 9 of April 3, 1991 established the Special Commission for Iraq which was
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given the mandate to investigate the execution of the Security Council‟s Resolution ordering Iraq to
destroy all biological weapons. Michael Scharf has pointed out that the Security could resort to the use of
sanctions and subsequently, force as a means of enforcement. Pg. 479. However, history has shown
repeatedly that when these occurs, the primary victims are the civilians sought to be protected.
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  The Biological Weapons Convention by this Article does not seek to prevent the

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breach from occurring but it is reactionary as the Security Council steps in when
a breach has been alleged.
 The Biological Weapons Convention, by this Article does not envisage a

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situation where it is the members of the Security Council that violates its
provisions leading to the conundrum: Who would watch the watchdog?
 The Biological Weapons Convention does not have a verification mechanism in

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place. This might hamper the investigations 48 of the Security Council into the
purported breach by a State party.

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However, the flaw of this Convention lies in its enforcement 49 . The Convention
altogether reveals a lack of enforcement mechanism so that it may be viewed as binding

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only in honor or a gentleman‟s agreement50 . It has been observed that the commitment
to annual reports of State parties was either completely ignored or observed only
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minimally51 .

The Sixth Review Conference of the State Parties to the Convention 52 led to the
establishment of the Implementation Support Unit53 in order to support the
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implementation of the Biological Weapons Convention and promote the peaceful uses
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48 Article VI(2) of the Biological Weapons Convention

49 Paul Wilenius and Robbie Gibb, “US accused over bio-weapons deal” BBC News (London, 18 November
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2001) < news.bbc.co.uk/2/hi/americas/1663376.stm> Accessed 13 th day of April 2020

50 Jonathan .B. Tucker, “Putting Teeth in the Biological Weapons Convention” (2002) Issues Vol. XVIII No.
3 https://issues.org/tucker/ April 15, 2020 2:28pm
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51 Boudewijn de Jonge, supra; Jean Paschal Zanders, “Verification of the BTWC: Seeking the Impossible
or impossible to seek?” (2006) Paris: Institute for Security Studies
52 This was made possible by Article XII of the Biological Weapons Convention
53 A/RES/72/71 Resolution adopted by the General Assembly on 4 December 2017
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 of biology54 . The Implementation Support Unit (I.S.U) was established as a „temporary

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secretariat‟55 . The I.S.U has made progress in enhancing transparency and trust between
State parties through its Confidence Building Measures; yet, the I.S.U lacks the capacity
to enforce the Biological Weapons Convention. This is especially seen in its Recent

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Report56 where it was stated that lack of funds is a major hindrance to the working of its
operations. The 2019 Annual Report of the Implementation Support Unit seems to show
that the I.S.U seeks to enforce the Convention by ensuring universalization of the

ev
Biological Weapons Convention, organization of workshops and seminars, collection of
details of parties to the Convention and confidence building measures. However, it
does not have any concrete means of enforcing a breach of any State party.

r
In spite of its lack of an enforcement or verification mechanism, Article XII of the

er
Biological Weapons Convention provides that a review would take place every five
years to „take into account any new scientific and technological developments relevant
pe
to the Convention‟. Dany Shoham‟s opinion is very important because he has noted that
the space of five years is too long 57 as in the five years between the Seventh and Eighth
Review Conference, there was the existence of Ebola and Zika virus with the latter virus
„relatively unfamiliar‟58 .
ot
tn

54 The bio page of BWC Implementation Support Unit @BWCISU

https://mobile.twitter.com/bwcisu?lang=en Accessed April 17, 2020 5:57pm
55 Ambassador Masood Khan, President of the Sixth Review Conference
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https://www.unog.ch/80256EE600585943/(httpPages)/F8521A510F455706C12573A6003F49F2?OpenDoc
ument April 13, 2020 12:47pm
56 BWC/MSP/2019/4 Annual Report of the Implementation Support Unit 2019
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57 “The Eight Review Conference of the Biological Weapon” (2016) CBW Magazine Volume 9, Issue 3; Manohar
Parrikar Institute for Defence Studies and Analyses https://idsa.in/cbwmagazine/eighth-review-
conference-biological-weapons-convention Accessed April 18 2020, 10:18am
58 ibid
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 The Biological Weapons Convention is still a major Convention regulating biological

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weapons.

3.4 THE ROME STATUTE

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The interplay between law and politics was seen in the drafting of the Rome Statute
which was the foundation for the creation of the International Criminal Court. The
Rome Statute has as its objective to exercise jurisdiction over, “most serious crimes of

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international concern”59 . Biological weapons, as weapons of mass destruction ordinarily
ought to be of utmost concern to the Rome Statute. However, the history60 leading to
the drafting of the Rome Statute shows that the final drafts of the Rome Statute indicate

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that the uses of chemical and biological weapons were criminalized. However, as the
use of nuclear weapons were not criminalized, the protests against the inclusion of the
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criminalization against chemical and biological weapons as they were the „poor man‟s
weapons of destruction‟ and to omit the prohibition on the use of nuclear weapons was
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„unfairly advantageous to countries which had or could develop them 61

The Rome Statute grants the International Criminal Court jurisdiction over the
offences of: genocide; crimes against humanity; war crimes and aggression62 . Some
ot

jurists argue that although there is no express prohibition against the use of chemical
and biological weapons in the Rome Statute, it can come within the ambit of the
tn

prohibition against, “Employing asphyxiating, poisonous or other gases, and all

59 Article 1 of the Rome Statute

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60 Dapo Akande,”Can the ICC Prosecute for the Use of Chemical Weapons in Syria?” (2013) EJIL: Talk!
https://www.ejiltalk.org/can-the-icc-prosecute-for-use-of-chemical-weapons-in-syria/ accessed 14 th day
of April 2020 accessed 5:54pm
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61 Dapo Akande supra; William .A. Schabas,”Chemical Weapons: Is it a Crime?” (2013) PhD Studies in
Human Rights <https://humanrightsdoctorate.blogspot.com/2013/04/chemical-weapons-is-it-
crime.html> accessed 14th day of April 2020 7;19pm ; 61 Kara Allen et al supra
62 Article 5 of the Rome Statute
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 analogous liquids, materials or devices” as contained in Article 8(2)(b)(xviii) of the

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Rome Statute63 . Others contend that „since the treaty text was clearly written, there is
no need to consider the history of the treaty64 ‟ and assessing what „120 countries
intended when they adopted the Rome Statute is nearly impossible‟ 65

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Yet others insist that the word, „poison‟ does not include biological weapons because
the definition of poison66 by The Elements of Crimes means: „a substance which causes
death or a serious damage to health in the ordinary course of events because of its toxic

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properties. Article 1 of the Biological Weapons Convention implicitly distinguishes
between biological weapons and toxins and as such, even if a toxin comes within the
scope of the Rome Statute, biological weapons does not67 .

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The provisions contained in Art. 8(2) (b) (xx) of the Rome Statute prohibiting the
employment of: er
“Employing weapons, projectiles and material and methods of warfare which are of a nature to
pe
cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in
violation of the international law of armed conflict, provided that such weapons, projectiles and
material and methods of warfare are the subject of a comprehensive prohibition and are included
ot

63 Kevin Jon Heller, “The Rome Statute does not Criminalize Chemical and Biological Weapons” Opinio
tn

Juris 5 th day of November 2015http://opiniojuris.org/2015/11/05/why-the-rome-statute-does-not-

criminalise-chemical-and-biological-weapons/ accessed 14 th day of April 2020 accessed 5:54pm
64 Alex Whiting, “The International Criminal Court, the Islamic State, and Chemical Weapons” Just
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Security (New York, November 2015) https://www.justsecurity.org/27359/icc-islamic-state-chemical-

weapons/ accessed 14 th day of April 2020 5:57pm; Dapo Akande, Can the ICC Prosecute for the Use of
Chemical Weapons in Syria? (2013) EJIL Talks! https://www.ejiltalk.org/can-the-icc-prosecute-for-use-
ep

of-chemical-weapons-in-syria/. Accessed April 11, 2020 10:50am

65 ibid
66 Kara Allen et al supra
67 Kara Allen et al supra
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 in an annex to this Statute, by an amendment in accordance with the relevant provisions set

ed
forth in articles 121 and 123”

has caused some jurists to speculate that the use of biological weapons can come within

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the scope of this provision68 . The problem with this assertion is that the weapons
referred to in this Article are limited to those specified in the Annex to the Rome
Statute. The said Annex is not in existence 69 and we are left at the beginning where we
started from.

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4. 0 WHICH WAY FORWARD

1. The overt difference between The Biological Weapons Convention and the

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Chemical Weapons Convention lies in its enforceability as the latter has an

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implementing agency, that is, The Organization for the Prohibition of Chemical
Weapons. The proposals for the establishment of an Organization for the
Prohibition of Biological Weapons should be looked into urgently and made a
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reality.
2. International law should be viewed as a chain with treaties, case law, customary
international law, general principles of law constituting the interlocking
ot

components. The essence of this is such that the lacuna in the Biological Weapons
Convention is filled by recourse to the various Human Rights Treaties and its
tn

regimes ensuring its enforceability or to International Humanitarian Law. The

recent trend seems to be a blurring of the lines of distinction between human
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68 See also the dissenting opinion of Judge Weeramantry in The Legality of the Threat or Use of
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Biological Weapons pg. 514; Dapo Akande, Can the ICC Prosecute for the Use of Chemical Weapons in Syria?
August 23, 2013 https://www.ejiltalk.org/can-the-icc-prosecute-for-use-of-chemical-weapons-in-syria/.
Accessed April 11, 2020 10:50am
69 Dapo Akande ibid
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 rights law and international humanitarian law70 . There seems to be no reason

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why the same step cannot be applicable here. This is why the step India has
taken by bringing a complaint71 to the Complaint Procedure Unit of the United
Nations Human Rights Council accusing China of committing “grave offences

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against the humanity throughout the world” by the use of Coronavirus as an
economic weapon or under the International Health Regulations of the World
Health Organization.

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3. The restriction in the Biological Weapons Convention as regards the
applicability of the Convention to State actors should be removed and extended
to include situations of internal conflict.

r
4. The call of the General Assembly 72 to State Parties to the Biological Weapons
Convention to implement the recommendations taken at the Seventh and Eight
er
Review Conferences should be heeded. This is important because at these
Conferences, it was recommended, among other things, that the following
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should be done to ensure effectiveness of the Biological Weapons Convention:
ot

70 Emilie Max,”Implementing International Humanitarian Law through Human Rights Mechanisms :

tn

Opportunity or Utopia. Working Paper” (2019) Geneva Academy of International Humanitarian Law and
Human Rights. This is especially as Art. 23(B) of the 1977 Protocol I Additional to the 1949 Geneva
Conventions
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71 In this complaint, China is accused of causing the spread of the Coronavirus thus violating Article 25(1)
of the Universal Declaration of Human Rights protecting the right to a standard of living adequate for
the health and wellbeing of himself and of his family; Article 12(2)(c) of the International Covenant on
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Economic, Social and Cultural Rights which provides that State Parties should take steps for the
“…prevention, treatment and control of epidemic, endemic, occupational and other diseases” as well as a
plethora of other international conventions.
72 UN/ A/RES/72/71 72 nd Session, Agenda item 106
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  Building an operational capability (i.e. through generating a list of

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experts) that could be called upon to assist in responding to a biological
incident, in the absence of a full-time inspectorate 73 .
 invite members from international organizations, including WHO 74 , OIE75

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and FAO 76 members officially and regularly in order for them to get
involved in discussion at future Science and Technology (S&T) review
processes so that experts in related fields are aware of up-to-date

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technology related to possible biological threats 77 .
 invite policy staff of such international organizations to the Meeting of
States Parties (MSP) and experts in related fields to the S&T review

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working group 78 .

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establish a communication line between the BWC and such international
organizations so that smooth and swift communication and exchange of
information are possible in case of a public health emergency 79
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 There should be a Science & Technology body that should be
independent, both functionally and politically. In other words, it has to be
purely technical and constituted by well reputed, appropriate technical
experts.
ot

 Technical experts in the Science & Technology body could be nominated

by States Parties according to the expertise needed, while they should
tn

73 BWC/CONF.VIII/PC/WP.34 “Working Paper on providing reassurance on Biological Weapons Convention

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(BWC) implementation.”
74 World Health Organization
75 World Organization for Animal Health
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76 Food and Agricultural Organization

77 BWC/CONF.VIII/PC/WP.29 “Strengthening cooperation with international organizations”
78 ibid
79 ibid
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 come from different parts of the world, so that the final composition

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would be inclusive, and all States Parties could feel being represented.80 .
 The International Community should devote more of their energies,
together with a unified stand, towards the prevention of an international

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pandemic caused by a breach of the Biological Weapons Conventions. In
other words, the International Community should seek to prevent rather
than react. The lack of preparedness of the International Community to
the breach of the Biological Weapons Convention has been shown in the
responses to the Coronavirus.

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 In fulfilling its aim of having jurisdiction over the most serious crimes of
international concern, the Rome Statute should be amended to prohibit
the use of biological warfare in international and non-international armed

r
conflicts.
 There should be public dissemination on the negative effects of biological

 er
weapons which would lead to awareness.
State Parties should domestic the 1925 Geneva Conventions as well as
The Biological Weapons Convention to ensure that State sovereignty is
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respected, and effectiveness of the Convention is guaranteed.

CONCLUSION
ot

The Coronavirus has devastated lives, nations, and economies although it is speculated
that it was either released inadvertently or was transmitted from animals to humans.
tn

Yet, it is only a glimpse of the threat of biological weapons. One can only imagine the
impact of a biological weapon purposely released. It is only hoped that the aftermath of
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the Coronavirus would encourage the implementation of stricter measures to prevent

the use of biological weapons in The Ninth Review Conference of the Biological
Weapons Convention scheduled to hold in 2021.
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80 BWC/CONF.VIII/PC/WP.27, “Reviewing science and technology with the BWC: elements of a politically
independent review”.
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