An international criminal law approach to bioterrorism.

Author:Kellman, Barry

    Bioterrorism is a reality, and we are all threatened. (1) We need to make critical choices without delay. The recent anthrax attacks of Autumn 2001 have nullified any resort to relaxed deliberation. Because response measures, no matter how elaborate, cannot confine the spread of disease and panic within acceptable limits, our choices must focus on preventing terrorists from acquiring or developing biological weapons. (2) Thus, there is an inexorable linkage between preventing biological terrorism and controlling biological weapons.

    This Article advances two key propositions. First, prevention measures must be international; unilateral measures are incapable of making much direct impact. These international measures must be comprised in a formal and legally binding treaty regime -- hence the significance of considering relevant measures in connection with the Bacteriological (Biological) and Toxin Weapons Convention (commonly known as the Biological Weapons Convention or the BWC). (3) Second, there are two approaches to preventing international bioterrorism: an approach based on arms control and non-proliferation, and an approach based on criminal law enforcement. These approaches are not inherently contradictory nor mutually exclusive, but their paths substantially diverge. The latter approach -- criminal law enforcement -- has distinct advantages, albeit with implications for current concepts of national sovereignty. (4)

    This Article briefly portrays the contours of an international criminal law enforcement approach to bioterrorism. It does so against the backdrop of the Fifth Review Conference for the Biological Weapons Convention, (5) which has accelerated a global debate over the efficacy of various tactics to cope with biological weapons. (6) That debate is likely to be shrill; whether it will be analytical remains to be seen. This Article's purpose is to establish a conceptual framework to systematically appraise various arguments that have arisen concerning the direction that international policy should take. More explicitly, this Article's thesis is that the simple but altogether accurate key to combating biological terrorism is to find and stop terrorists, whether state or non-state, from getting or using biological weapons. Everything else is surplus.


    As of this writing, it is not known whether the anthrax attacks of Autumn 2001 have domestic or foreign origins, whether those attacks are finished, or whether the perpetrators of those attacks have access to other biological weapons. It was determined that the anthrax used in the attacks was weapons quality. The United States is still starkly vulnerable to a terrorist attack involving pathogens that are produced and weaponized in some distant corner of the world and brought here by a single traveler. There is no way to prevent someone from carrying a perfume bottle of pathogens through customs at any international airport. It is difficult, without close examination, to distinguish power-form pathogens from makeup or perfume, and no airport metal detector can screen for pathogens. Once the biological weapon is here, if sufficiently virulent, there may be no way to contain its consequences. That the United States cannot prevent the importation of pathogens does not prove, of course, that the anthrax involved in recent attacks is from a foreign source, but it suggests America's vulnerability to future attacks from a foreign source. Various biological weapons experts have described the former Soviet and Iraqi bio-weapons programs and have alleged that the security of these country's weapons and the accounting for these country's weapons are deficient. (7)

    The ease with which pathogens can be carried or shipped means that unilateral action cannot prevent bioterrorism. Investigators may uncover a secret laboratory in the United States, but a laboratory in most other parts of the world could easily escape detection, and operations could proceed with minimal risk. Robust domestic regulatory and law enforcement capabilities alone would have negligible ability to detect foreign terrorists who are developing biological agents nor to prevent someone from bringing weaponized agents to the United States.

    In view of the potential magnitude of casualties, (8) it makes sense to consider ways of reducing the risk that weapons quality biological agents from a foreign source will be used against the United States. (9) Successful measures to combat bioterrorism should include attempts to identify covert biological weapons activities and to interdict those activities as well as transnational movements of deadly pathogens. The current capabilities to detect or interdict pathogens are worse than inadequate; these capabilities are virtually non-existent.


    The arms control approach (including non-proliferation) provides an effective set of measures to cope with a dangerous threat to international security: vertical and horizontal weapons proliferation among national militaries, with concomitant acceleration of both the likelihood that war among nations will erupt and that, if and when war does break out, the consequences will be catastrophic. (10) These measures make considerable sense for controlling nuclear weapons and, to a lesser degree, chemical weapons because these weapons tend to be developed by state-operated militaries; development of these weapons is perceived to offer strategic advantages in waging military campaigns. Because it is technologically difficult to make these weapons effective for military purposes, states employ elaborate facilities either directly under their control or in the private sector. Moreover, these weapons tend to be developed covertly; national security is often thought to be augmented by secrecy and ambiguity. International norms condemning the development of such weapons reinforce the need for secrecy. Despite this secrecy, non-proliferation strategies are effective because weapons production activities at these facilities are identifiable upon inspection, even if they are concealed, and even after production and development have ceased.

    Arms control conventions bolster the international norms against use or possession of a class of weapons and often include measures to deny states access to the scarce materials and complex technology that might enable them to develop those weapons. To thwart cheating, arms control conventions often include verification measures that are designed to: (1) prove a state's compliance with international norms; (2) deter a state from cheating by raising the likelihood of discovery; and (3) alert the international community to covert weapons programs.

    Accordingly, verification measures include declaration obligations whereby states provide information concerning both relevant military and private sector activities to an international organization. To obtain required information, States Parties must impose a reporting requirement on relevant private sectors participants--a requirement that may be perceived as burdensome and threatening to the confidentiality of business secrets. Arms control conventions also compel states to permit agents of an international organization to visit public and private facilities in order to verify declarations. Each State Party must provide access to relevant facilities, further risking privacy intrusions. There may also be an obligation to allow investigations that are based on a suspicion of non-compliance, the so-called special or challenge inspections.

    1. The Biological Weapons Convention

      The Biological Weapons Convention (BWC), Article I, prohibits development, production, stockpiling, or acquisition of: (1) biological agents that cannot be justified for prophylactic, protective, or other peaceful purposes; and (2) weapons designed to use such agents for hostile purposes or in armed conflict. (11) This prohibition articulates a clear and unequivocal norm against the use of biological weapons, binding on the treaty's States Parties and arguably stating a jus cogens principle of customary international law.

      Article III extends this prohibition to international transfers and assistance to manufacture or acquire biological agents or weapons. (12) Article VI authorizes any State Party to lodge a complaint with the United Nations Security Council concerning another State Party's breach of its obligations; all States Parties must cooperate in investigating the complaint. (13) Article IV requires each State Party to extend the Article I prohibitions to persons within its jurisdiction or control. (14) Article X provides that States Parties are to facilitate in exchanges of equipment, materials, and scientific and technological information for the use of biological agents for peaceful purposes. (15)

      The BWC does little more than express a norm; it lacks capabilities to verify compliance. Moreover, it is directed exclusively at the problem of state-run military programs involving biological weapons; that non-state actors might develop or use biological weapons is scarcely within the treaty's ambit. Even as to states, the BWC propounds no enforcement mechanisms whatsoever. (16) The BWC was, therefore, essentially useless in preventing the Soviet Union and Iraq from developing sophisticated bio-weapons capabilities over a sustained period. (17) Finally, the BWC does not address regulatory initiatives that could restrict access to essential bio-weapons materials or equipment. (18)

    2. The BWC Protocol

      In 1994, a Special Conference of the BWC States Parties established the Ad Hoc Group (AHG) to consider appropriate measures, including possible verification measures, and to draft a legally binding instrument to strengthen the effectiveness and improve the implementation of the BWC. (19) In July 2001, the negotiations were nearing consensus on the basis of the compromise text drafted by the AHG's chairman,...

To continue reading