Biological Weapons as New Types of Weapons: Applicable and Future International Humanitarian Law

Aparajitha Narayanan, Leiden University, The Netherlands

Aparajitha has a Bachelor of Laws degree from I.L.S. Law College, India, 2015. She has worked in a corporate law firm for a period of 3 years, after which she pursued her L.L.M. in Public International Law, with a Specialisation in International Criminal Law, from Leiden University. Her LL.M. thesis on ‘Command Responsibility: A Contemporary Exposition’ was supervised by Professor William Schabas. Her areas of interest include International Criminal Law (specifically, defence rights), Public International Law and International Humanitarian Law. She currently works as a Lecturer at Jindal Global Law School, the course Global South and International Law, taught by Prof. Dr. B.S. Chimni.

Abstract

While it is true that regulating the possession or use of weapons is not an easy feat, states do seem to respect the objective and essence of the regulations once they are formulated and enacted. Prohibitions against the use of expanding bullets and biological weapons are considered quite effective and have managed to put a stopper to their unregulated use. Prohibition on the use of chemical weapons was also predominantly implemented, until their use in the Iran-Iraq conflict, effects of which resonate till date. Land Mine and Booby Traps prohibitions also performed well during and after the Falklands war. In effect, International Humanitarian Law (“IHL”) has successfully managed to ensure at least its minimal compliance is met by those in conflict situations, an example other fields must swiftly follow. Disarmament and IHL go hand in hand, the latter’s folly could lead to the former’s redemption. This paper will focus on the evolution of the law relating to biological weapons, depicting firstly the IHL regime, then gradually detailing new-age inventions/discoveries in the biological weaponry field. It will also provide certain suggestions that may ensure improved compliance of international law, from the biological weaponry perspective, concluding with remarks on challenges faced in light of futuristic advancements in biotechnology.

1 Introduction

Bio-warfare, since time immemorial, has been a cause of concern for many. However, not many are aware of the fact that even the infamous bubonic plague has implications in the military parlance and has been categorised by the Centres for Disease Control and Prevention as a Category A bioterrorism agent (Frith, 2012, p. 11). Nowadays, any discussion regarding biological weapons is seemingly reflective of fact masquerading as fiction, reality juxtaposing as myth, wherein scenarios such as those forming the central plot point of a film such as Tomb Raider (2018), may actually transpire.

It would hardly be hyperbole to state that post-battle diseases have contributed to more deaths than actual battle itself. For instance, the influenza epidemic, post-World War I, killed at least 20 million people or more (Block, 1999, p. 58). Nevertheless, characteristically so, it came as a shock to many, even within the scientific community when the Chinese scientist Mr. He Jiankui revealed that he was successful in editing the genes of human embryos, which, if carried to term, would result in the existence of the first genetically modified human beings (Wehner, 2019). It is rather unfortunate that there is no regulatory regime controlling such discoveries and ensuring that they fit within a stringent framework. There is growing concern in the scientific community that genome editing could have effects that could lead to bio-terrorism. Accordingly, the World Health Organisation (WHO) has positively stated that it supports the formulation of a regulatory framework for genome editing. 

In 2016, the North Atlantic Treaty Organization (NATO), the WHO and the United States Blue Ribbon panel published elaborate reports on the inevitable risks directly linked to biological weaponry (Frinking et al., 2016, p. 3). Moreover, as recently as the beginning of 2017, the World Economic Forum, in its Global Risks Report 2017, highlighted that innovations and advancements in technology provided dangerous biological weapons to both states and non-state actors, adding fuel to the volatile fire of geopolitical relations (Frinking et al., 2016, p. 3). 

So far, 35 agents have been listed by CDC as potential biological weapons, categorised into 3 different groups, based on their threat levels: 

Category A: Have the highest potential for dissemination and mortality rates. Pose the greatest risk to national security as well as causing massive public fear and civil disruption. Require the most public health preparedness.

Category B: Also pose a potential risk through dissemination, although with fewer incidents of illness and lower rates of mortality. Considerable public health preparedness.

Category C: Not considered a significant threat as category A and B, although there is the potential for these agents to be developed as future weapons with better scientific understanding. Could still potentially lead to incidents of morbidity. Non-specific preparedness through overall bio-terrorism assessment.” (National Center for Emerging and Zoonotic Infectious Diseases, 2018).

While it is true that regulating the possession or use of weapons is not an easy feat, it is expected that States respect the objective and essence of the regulations once they are formulated and enacted. Prohibitions against the use of expanding bullets and biological weapons are considered quite effective and have managed to put a stop to their unregulated use (International Committee of the Red Cross, 2010). Prohibition on the use of chemical weapons was also predominantly implemented, until their use in the Iran-Iraq conflict, effects of which resonate today (Ali, 2001, p. 43). Land Mine and Booby Traps prohibitions also performed well during and after the Falklands war. In effect, International Humanitarian Law (IHL) has successfully managed to ensure at least its minimal compliance is met by those in conflict situations. Disarmament and IHL go hand in hand, the latter’s folly could lead to the former’s redemption. Even though technology has advanced to an unfathomable level, we address 21st century concerns erupting from such development with laws made in the 20th century (Jensen, 2014, p. 253).  

This paper examines whether the body of the laws of armed conflict is equipped to counter new bio-challenges.  It focuses on the evolution of the law relating to biological weapons, depicting firstly, the IHL regime, then gradually detailing new-age inventions/discoveries in the biological weaponry field. It will also discuss certain suggestions that may ensure improved compliance of international law, from the biological weaponry perspective. It will then examine whether the present laws are sufficient to counter or even address new-biological technology concerns, particularly the law of armed conflict and whether state practice allows for its smooth functioning. Certain suggestions will be made on how best to counter the challenges faced in light of futuristic advancements in biotechnology.

2 Evolution of law applicable to the regulation of biological weapons

This section will first elaborately discuss the laws applicable to the regulation of biological weapons. Then, it will attempt to demystify the problems present in such laws and the specific challenges faced in the biological weaponry sphere, while also addressing such concerns by discussing possible solutions. 

2.1 General prohibitions under IHL

The behaviour of parties to armed conflicts is not unrestricted. Restrictions are imposed by, among others: the United Nations Charter, human rights law, environmental law, law of neutrality, and most importantly, jus in bello or the law of war, which is solely dedicated to put constraints on the waging of war. IHL is that branch of law whose objective is to constrict certain behaviour or behavioural patterns during armed conflicts. Concomitantly, in IHL, the right of a party to use any means or methods of warfare is circumscribed. Article 35 of the Additional Protocol-I to the Geneva Conventions of 1949 (hereinafter referred to as AP-I) stipulates that any means or methods of warfare that are indiscriminate or that cause superfluous injury or unnecessary suffering are strictly prohibited (Additional Protocol I, 1977). The aim of IHL is to mitigate human suffering, not eliminate it altogether, which would explain why collateral damage is within the permissible boundaries imposed by IHL.  IHL was promulgated in an effort to humanise war and Article 35 is central to that purpose. IHL purports that it is irrelevant if one relies on Article 51 of the United Nations Charter or if the act is sanctioned by the United Nations; protection of civilians is at the core of IHL’s essence and will always be superlative. The principles governing such protection are primarily those of military necessity (stemming from the prohibition of superfluous injury and unnecessary suffering), proportionality, humanity (derived from the Martens clause) and distinction (between civilians and combatants and between civilian and military objectives) (ICRC Casebook). 

2.1.1 Applicability of such principles to weapons

Article 36 of AP-I, which has garnered the status of customary international law, depicts what constitutes a legal weapon under IHL. The said provision purports that States are to determine whether “any new weapon, means or method of warfare” that States plan to use, is prohibited by international law. Such review is ‘multidisciplinary, including military, legal, environmental and health related considerations (Lawland, 2006). Generally, there are two methodologies used to ascertain such determination. The first is ‘weapons law’, wherein, if any weapon contravenes certain factors, by virtue of its ‘normal or expected use’, it will be considered as a lethal weapon. Further, its use would be illegal since under no circumstance would it manage to uphold the basic principles of IHL, if used in combat (Docherty et al., 2012, p. 32). Furthermore, if a weapon cannot distinguish between legal and illegal targets, based on “accuracy and reliability of targeting, the type of munitions used, and the area (of impact) covered”, it can be concluded that it flouts the quintessential principle of distinction and will have recalcitrant consequences even if it can strike any target precisely (Lawland, 2006). The reasoning employed while classifying biological weapons as ‘indiscriminate’ is owed to the fact that their effects cannot be immediately controlled by actors and their pathogenic reach could cascade to illegal targets like civilians. The next prohibition pertains to weapons causing ‘unnecessary suffering or superfluous injury’ which in principle aims to limit the opponents’ ability to devise strategies to injure the enemy, like expanding bullets, barbed lances etc. (Kastan, 2013, pp. 5; 52). An important criterion while deciphering whether a weapon is intended to cause ‘unnecessary suffering or superfluous injury’ depends largely on whether the suffering or injury is targeted at serving a legitimate purpose, rather than a personal goal, for instance, “attrition of enemy combatants” rather than say, “vengeance.” (Kastan, 2013, p. 5;52). The last prohibition relates to the new weapon forming a part of the ‘prohibited’ list under any specific treaty/convention or agreement (but with further advancements in formulae and such), like Abrin, African swine fever, Bacillus anthracis, Ebolavirus etc. as mentioned in the 1972 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction (hereinafter referred to as 1972 BWC) (Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, 1972). Many weapons clearly violate the first two prohibitions, but States, on their own volition, execute agreements prohibiting the use or production of certain weapons, regardless of any existing prohibition under international law (Strategic Arms Limitations Treaty, 2016). 

The second methodology used to make the Article 36 determination is that of ‘targeting law’ which primarily deals with the conduct of hostilities and the circumstances of a weapon’s use (Thomas, 2015, p. 235). Targeting law requires an assessment of discrimination, wherein a weapon may be used only in circumstances where targets may be reasonably distinguished from legal and illegal, and not where such a distinction is not possible; for instance, the weapon may be permitted only where it can distinguish between combatants and civilians (Toscano, 2015, p. 196). Further, military necessity, postulated in Article 52 of AP-I, purports that the force used by weapons must relate to the legitimate military objective to be achieved, wherein such legitimacy is determined by the military advantage such use of force may provide in combating against the enemy (Article 52(2), Additional Protocol-I, 1977). Next, the principle of necessity differs from proportionality, wherein the amount of force used must be directly proportional to the exact military advantage sought (Article 52(2), Additional Protocol-I, 1977). To illustrate, in a populated area, with a certain amount of force, the damage that the civilian population may face may be massive, as opposed to an unpopulated area with little to no civilians. The most important criterion needed to assess the above quantification is whether the collateral damage would be excessive (Schmitt and Thurnher, 2013, p. 231).  Proponents of the above postulate contend that the amount of military advantage to be gained through a weapon’s use is directly relates to the collateral damage tolerated under IHL (Schmitt and Thurnher, 2013, p. 264), which is a dangerous assumption to make. The most popular exponent of the above idea was the United States of America, which justified using the nuclear bombs in Japan, in the provinces of Hiroshima and Nagasaki in 1945, using the above argument. The said justification is a polemic one, although arguably the nuclear bombing triggered the surrender of Japan, the consequence being that the United States of America did not have to stage a hostile military takeover which would have led to multiple civilian casualties (Pearlman, 1996).

Ultimately, while using weapons, “feasible precautions must be taken, based on reasonability” (Press, 2017, p. 1351)Such precautions include ensuring that all feasible precautions are being taken to verify whether the reasons for attack run parallel to military objectives and not civilian objectives, and that the attack does not target civilians. Further, it must also be confirmed that precautions are taken in “avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects” (Article 57(2), Additional Protocol-I, 1977). It may be noted that while ‘feasible precautions’ must be taken prior to initiating an attack, the said term does not impose a blanket ban on attacks that may result in civilian casualties, by virtue of the fact that the principles of necessity and proportionality would then come into play. However, as an illustrative counter-assertion, it could be said that a soldier would not be guilty of an IHL violation, while firing at a combatant, who then moves out of the way, resulting in a civilian’s death, since there was no indication that a civilian would be standing behind the enemy combatant (Law of War Manual, 2015, p. 189). Therefore, transposing the above IHL prohibition to the use of biological weapons, it is amply clear that such use is specifically prohibited, since it could result in superfluous injury or unnecessary suffering, result in indiscriminate effects, cannot distinguish between military and civilian objectives, and in no way can respect the principles of both necessity and proportionality. The central issue with “any microbial threat list is that it is necessarily a backward-looking document” (Casadevall, 2012, pp. 584-587). It is clear that new diseases will constantly be identified and will continue to threaten us, like the coronavirus disease- COVID-2019, which has now been classified as a pandemic. It is also important to keep in mind that such microbial threats may possess substantial weapon potential, which humanity may fail to take note of, until it is too late. 

2.1.2 Biological Weapons and International Law

It is generally understood by States that biological weapons are toxins or organisms via whose deliberate use, diseases could either be created or spread or both, with the specific intention to cause harm or kill human beings, animals or plants, i.e. all living forms. WHO defines biological agents as “agents designed to target human beings, plants, or animals with the intention of war, death, and/or harm by infecting them with disease-causing microorganisms and other biological entities, including viruses, infectious nucleic acids, prions, and toxins” (World Health Organization, 2004). Biological warfare is a very specific kind of warfare that focuses its single-minded intensity on the intentional use of agents (micro-organisms, toxins) of microbial, plant or animal origin, to wreak havoc in living beings by producing diseases and consequently, terror and death. It is asserted that one of the major reasons for their continual existence and use is their low production costs. Apart from the said reasoning, there are other advantages of using biological weapons. It is also believed that biological weapons (Atlas, 1999, pp. 465-477):

  1. are not easily detectable by security systems (unless specifically created to detect them, which are few and far between);
  2. are easily transportable from one area to another, while also being cost-effective and biological toxins and organisms are easily available;
  3. both instantaneously, and over time, decimate entire populations;
  4. possess properties of “invisibility and virtual weightlessness rendering detection and verification procedures ineffectual and make their non-proliferation impossible.”

There are several other reasons that make biological warfare the most terrorising of all, its high morbidity rate, high toxicity, suitability for mass production and distribution (which, being virtually undetectable), easy storage sans the loss of pathogenic potential etc. (Jansen et al., 2014, pp. 488-496).

There is, however, a twin-use conundrum when it comes to deciphering the motives underscoring the production of biological weapons. It could be said that positive biological research may lead to microbial discoveries and inventions in pathology and disease-fighting abilities, which could eradicate epidemics and lead to the production of vaccines combating the outbreak of diseases. However, simultaneously, the dark side of such research may result in the production of vaccine-resistant strains used to aid or promote biological warfare, for instance, an anthrax weapon production facility at Al Hakam operating under the translucent veil of a normal civil biotechnological laboratory (DaSilva, 1999). The duality of such usage of biological weapons is counter-intuitive since it stems from the lack of a feature differentiating any biological research resulting in positive and negative consequences. Therefore, there is a growing need to identify such counter-effects and devise differential equations classifying belligerent biological discoveries and inventions. 

Biological and chemical weapons share certain commonalities, both have been used in terrorist attacks against masses of people, however, there is a severe dearth of defence strategies and efforts to combat the havoc caused by such weapons are either non-existent or are unfortunately futile, owing to minimal awareness. However, biological weapons are more attractive to many actors in light of their many advantages, as stated above. It is commonly believed that the killing capacity of the most lethal biological agents are exponentially higher than that of the most lethal chemical warfare agents (Office of Technology Assessment, 1993, p. 50). Further, amongst all lethal weapons of mass destruction – chemical, biological and nuclear – the ones most feared are bioweapons (Danzig and Berkowsky, 1997, pp. 278; 431-432).

The evolution of chemical and biological weapons is inter-linked. The first phase was propelled by the World War I, where “gaseous chemicals like chlorine and phosgene were used in Ypres”the second phase began with “the use of nerve agents e.g. tabun, a cholinesterase inhibitor”, and the attacks using the anthrax and the plague bombs in World War II, the Vietnam war then began the “use of lethal chemical agents like Agent Orange, a mix of herbicides stimulating hormonal function resulting in defoliation and crop destruction”, and also led to the emergence of a new kind of weapon, one that possessed characterises of both biological and chemical warfare; the fourth phase then drove the advent of genetic engineering, where potential bioweapons may be produced, inter-alia (DaSilva, 1999; Henderson, 1999, pp. 283; 1279-1281): 

“organisms functioning as microscopic factories producing a toxin, venom or bioregulator; organisms with enhanced aerosol and environmental stability; organisms resistant to antibiotics, routine vaccines, and therapeutics; organisms with altered immunologic profiles that do not match known identification and diagnostic indices and organisms that escape detection by antibody-based sensor systems.”

Many are unaware that one of the major objectives of biological warfare is disruption, and preferably, complete obliteration of the economic stability of the target state(s). The origin of the said objective can be linked to the production and subsequent use of toxins to specifically target food-sources, notwithstanding, livestock and crops (Rogers et al., 1999, pp. 280, 70-75). A dangerous premise under which biological warfare seems to operate is that the destruction of such food sources can be endemically connected to inexplicable natural occurrences, rather than specific man-made catastrophes. Further, the tainting of the environment is also attributed to “dump burial, the use of disease-producing micro-organisms in terroristic attacks on civilian populations”; and non-compliance with existing international law (Miller, 1999; Jansen et al., 2014, pp. 488-496).

There is a growing threat of the rise of “immunosuppressed populations resulting from xenotransplantation and cancer chemotherapy, loss of biodiversity, and the re-emergence of old diseases” that have propelled the idea of review of the decision to destroy protective sources (DaSilva, 1999). Field tests have not stopped devoting their attention to ascertaining the minimum dosage of the bio-agent causing infections in large targeted populations, the stipulated time period for spreading of the said infection, and the manipulation of their entry systems, like “inhalation, ingestion, use of vectors, and the contamination of natural water supplies and food stocks” (DaSilva, 1999). As far as international law is concerned, the 1972 BWC was the first multilateral disarmament treaty banning the development, possession, and transfer of biological weapons, and obligates State Parties to destroy or divert to peaceful purposes all such weapons in their possession or under their jurisdiction or control (Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, 1972). Further, the Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare of 1925 (hereinafter referred to as the “1925 Gas Protocol”), specifically prohibits the use of bacteriological weapons, i.e. biological weapons (Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases and of Bacteriological Methods of Warfare, 1925). As per Article 1 of 1972 BWC, state parties to the said convention are obligated to not “develop, produce, stockpile or otherwise acquire or retain: 

  1. 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 and
  2. weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict.”

While there is no definition of the term ‘biological weapon’ per se in the 1972 BWC, its prohibition is effectually linked to the purpose of its usage, as explained above in the ‘twin-use conundrum.’ The reason the term finds no definition is because biological agents or toxins, may be used in both times of peace and war. If such weapons are used to further purposes of war, they are strictly prohibited, however, if pathogens are developed to counter diseases and infections, i.e. their purpose is not devoted to propagating war efforts, their prohibitive boundaries diminish. 

The use of biological weapons is prohibited under IHL since biological weapons are unique in the sense that they are the only kinds of weapons that cannot fulfil ‘only’ military objectives, since a virulent pathogen is incapable of differentiating between a combatant and a civilian. For instance, during World War-II, the Japanese decided to attack the Chinese city of Chang-de using a biological weapon. The death toll was around 10,000, with 1700 being Japanese (Riedel, 2004, p. 402). The 1925 Gas Protocol stipulates a direct prohibition on the use of bacteriological weapons, which is considered to be customary international law (Boserup, 1973, p. 126). At this juncture, it would be pertinent to observe that the use of biological weapons is prohibited under customary international law (1925 Gas Protocol and IHL), applicable only in cases of international armed conflicts. However, the International Committee of the Red Cross has opined that there is a blanket ban on biological weapons, both during international armed conflicts and non-international armed conflicts, which view was expressed by the International Criminal Tribunal for the former Yugoslavia as well (Henckaerts and Beck, 2005, p. 257; Prosecutor v. Tadić, ICTY, 1995, pp. 96-127). The International Criminal Court Statute (Rome Statute, 1998) also does not criminalise biological weapons explicitly, but it prohibits the use of ‘poison or poisoned weapons’. The negotiations’ rounds leading to the drafting of the Rome Statute justify the understanding that powerful States deemed that nuclear weapons must not be explicitly banned; hence, counterintuitively, it was claimed that ‘the poor person’s weapon of mass destruction, biological/chemical weapon’ must not be prohibited either (UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Committee of the Whole, 1998, p. 74). Such a warped sense of faux-equality seems fatuous, having seen in the preceding paragraphs, the level of destruction a biological weapon can leave in its wake. 

Perhaps a solution to counter the twin-use conundrum is by way of strengthening the foothold of the 1972 BWC, wherein provisions for conducting thorough inspections (with cause) and increased law enforcement including sharing important information relating to bioweaponry threats, could be introduced. Any agent that may potentially have a dual-use advantage should be restricted for peaceful purposes (if such use is predictable) and biosafety standards and controls must be tighter, particularly while exporting such agents. Information sharing in relation to these weapons within the scientific community must also be wider, so that there is a system of checks and balances, thereby increasing the culture of responsible conduct, even within the arms control regime. The collocation of biology and military weaponization has always been prevalent, but the challenges surrounding such juxtaposition need to be addressed at the earliest. A fool-proof and efficient way to deal with the above is via promoting awareness of the dangers involved in potential use of biological advancements in weaponry. For instance, the process of procurement by military personnel of cognitive enhancement drugs could be made more transparent, thereby creating a sense of preparedness, which will aid in countering risks associated with the said technology. 

Currently, international interest in formulating codes of conduct for bio-scientists is on the rise, which may aid in preventing the misuse of life sciences for violent and war-ridden purposes (Wheelis and Dando, 2005). Scientific boards and institutes of sciences, domestic or international, could come together in drafting methodologies for the same, including implementing systems or mechanisms of oversight, thereby regulating arms control. The Chemical Weapons Convention of 1993 has a stringent scrutiny framework, wherein the Organisation for the Prohibition of Chemical Weapons assists in verification of its implementation and addresses security threats. However, the 1972 BWC has no such mechanism for monitoring the progress of its implementation by States. Introduction of a similar system in the biological weaponry regime may prove to be fruitful. Another possible way to introduce liability could be via the Rome Statute. The Rome Statute recognises that grave crimes threaten the peace, security and stability of the world, it also affirms that “the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation” (Rome Statute, 1998, Preamble). The Rome Statute is also determined to “put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes” (Rome Statute, 1998, Preamble). As has been detailed above, biological weapons are the most dangerous amongst all lethal weapons, owing to their ability to completely annihilate both lands and populations, for generations to come. However, the Rome Statute does not provide an explicit prohibition on the usage of biological weapons. The word ‘poison’ in the Rome Statute does not seem to include biological weapons within its ambit. The Elements of Crimes in the Rome Statute contains the definition of ‘poison’ as a substance causing “death or serious damage to health in the ordinary course of events because of its toxic properties” (Article 8(2)(b)(xvii), Elements of Crime, 2002). Biological weapons are microorganisms that can cause damage or disease, which are not used for prophylactic, protective or other peaceful purposes (Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, 1972). Toxins are poisonous substances produced by living beings; toxin weapons are either toxins or chemicals, biological agents are neither toxin weapons or chemicals, therefore, they do not fulfil the definition of ‘poison’ as per the Rome Statute (Cottier, 2008, p. 413). Thus, it is proposed that the Rome Statute be broadened to include a specific prohibition on the use of biological weapons. 

3 Black Biology

Black biology is defined as the use of genetic engineering to augment a pathogen’s virulence (Ainscough, 2002, pp. 165-186). We live in times where science fiction is closer to reality than science itself. Genetic engineering is not a skill possessed by a select few anymore; it is all the more accessible in present times. Therefore, black biology is a threat that may be used by States and non-state actors alike. A classic example of the use of black biology was the work done by Sergei Popov, head of the Soviet Bioweapons programme, who allegedly developed a strain of plague resistant to multiple antibiotics, and another strain of anthrax, resilient to both the anthrax vaccine and multiple antibiotics (Miller et al., 2001; Lawrence, 2013). His entire work is captured as non-fiction literature, titled ‘Biohazard’, excerpts of which will throw light on how menacing the Soviet efforts were (Ken and Handelman, 1999):

“On a bleak island in the Aral Sea, one hundred monkeys are tethered to posts set in parallel rows stretching out toward the horizon. A muffled thud breaks the stillness. Far in the distance, a small metal sphere lifts into the sky then hurtles downward, rotating, until it shatters in a second explosion. Some seventy-five feet above the ground, a cloud the colour of dark mustard begins to unfurl, gently dissolving as it glides down toward the monkeys. They pull at their chains and begin to cry. Some bury their heads between their legs. A few cover their mouths or noses, but it is too late: they have already begun to die. At the other end of the island, a handful of men in biological protective suits observe the scene through binoculars, taking notes. In a few hours, they will retrieve the still-breathing monkeys and return them to cages where the animals will be under continuous examination for the next several days until, one by one, they die of anthrax or tularaemia, Q fever, brucellosis, glanders, or plague.”

It is highly disconcerting to even envisage a world where the above phenomenon may find some basis in grounded realism, however, black biology emphasises that such technology could render any solution futile, resulting in bio-terrorism. There are other equally trenchant discoveries that may be classified as biological warfare, including, militarisation of neuroscience.

4 Militarisation of Neuroscience and Biological Warfare

The field of neuroscience is a rapidly evolving one, wherein advancements in technology may very well result in medical and societal advantages, such as diagnoses and treatment of psychiatric or neurological ailments. However, conversely, the said advancements may also converge with the new-age malicious purposes of the military and can be designed for hostile reasons. It is considered that the military applications of neuroscience are aimed to serve two particular interests – “performance enhancement or improvement of the efficiency of one’s own forces, and performance degradation, i.e. diminishing the performance of one’s enemy” (Royal Society Policy Document, 2012, p. 11). 

Traditional negative uses of biological agents may easily be categorised under the purview of biological weapons, however, modern advancements in technology (like militarisation of neuroscience) make it extremely difficult to fit such purposes within ‘biological weaponry.’ Performance enhancing biological agents may not respect the general principles enshrined under IHL, as their purposes will rarely be convergent with military objectives and will predominantly be hostile. There is no general prohibition for agents used in militarisation of neuroscience. However, their use may be prohibited under Article I of the 1972 BWC, since such agents are not to be ‘used in armed conflicts.’ Further, the principle of distinction under IHL posits that parties to any armed conflict must, at all times, distinguish between civilians and combatants, and that attacks must never be directed against civilians (Articles 48, 51(2) and 52(2), Additional Protocol-I, 1977). Military use of neuroscientific applications must therefore respect the above principle of distinction, which would not be easy to achieve (Herby, 2007, p. 288). Such use may also cause unnecessary or superfluous injury, thereby affronting IHL principles. 

Performance degradation, on the other hand, may lead to cognitive impairment, wherein military and civilian objectives may be difficult, if not altogether impossible, to distinguish. Once an attack perpetrated by a cognitively impaired person has occurred, the perpetrator would not be prosecuted, since he/she “will have been rendered mentally incapable of being responsible for the offences” (Article 1(a) and 1(b), Rome Statute, 1998; Royal Society Policy Document, 2012, p. 11; R v. Mohammed Sharif, 2010, p. 1709). However, a school of thought theorizes that the 1972 BWC prohibits “microbial or other biological agents, or toxins whatever their origin or method of production, that have no justification for prophylactic, protective or other peaceful purposes” (Article 1.1, Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, 1972). The 1972 BWC is therefore quite broad in its prohibition, since some incapacitating agents like bioregulators including neurotransmitters, could be categorised as biological agents or toxins (Royal Society Policy Document, 2012, p. 11). However, the 1972 BWC does not prohibit defensive research into the mechanisms of action of neuro-weapons, that use biological agents to release neurotoxins (Andreasen, 2001). Popular opinion states that a detailed study may be conducted by medical boards, on the legal, moral and ethical implications on biophysical degradation techniques, that are primarily targeted at the central nervous system (NATO, 2004). Mechanisms exploring methods to protect humanity from the dark side of biological inventions must be devised, which can only happen with the active, cooperative involvement of the scientific, legal and legislative communities. Even the WHO believes that there must be safe, transparent and responsible genetics research. WHO also plans to formulate a “central registry on human genome editing research so that scientists around the world can update colleagues on progress of various genome-research efforts, holding everyone accountable” such that the entire process, from the beginning to the end, is well documented (Cohen, 2019). A governance framework needs to be structured for all kinds of genetic research,  human genome editing or otherwise, wherein perspectives of all stakeholders, including civil societies, scientists, military officials, medical representatives, patients, etc. should be considered and accountability at every level is strategically upheld. Further, while reviewing emerging trends in the biological weapons realm, neuroscience should also be considered, since, as explained above, there is a propensity to use neuroscience advancements for hostile purposes, while not respecting the principle of distinction. Science and technology experts may weigh in on how the above scientific problem may be tackled since cognitively impaired perpetrators cannot be tried as per international criminal law either. 

5 Conclusion

The principles of proportionality and necessity hold a lot of weightage in assessing whether the attacks devised by a biological weapon fall within the permitted boundaries of IHL or not. It is close to impossible to identify any object as a legitimate military target, with the purpose of fulfilling military objectives, while unleashing a biological weapon on it, since biological weapons, by their ‘nature’, are capable of resulting only in indiscriminate effects. Further, the twin-use conundrum adjoining the contours of the characterisation of biological weapons dumps an additional burden on such classification. 

Presently, all populations, regardless of a military or civilian distinction, are vulnerable to a biological attack, owing to lack of adequate preparedness. It is also widely believed that “the first world war was chemical; the second world war was nuclear; and the third world war, god forbid, will be biological” (Stewart, cited in Reaney, 2001). If warfare could be asymmetric, which it is, more often than not, biological weapons are viewed as the ‘great equaliser’, since a miniscule amount of a biological agent or toxin can lead to the chaotic ruin of the entire planet. Furthermore, the meaning and import of armed conflicts have changed now, and such a change is owed primarily to technologically advanced means and methods of warfare. The Washington Post was not far off when it commented that:

“The ‘laws of war’ may sound like an antiquated concept in this age of robo-weapons. But, in truth, a clear international legal regime has never been more needed: It is a fact of modern life that people in conflict zones live in the perpetual cross hairs of deadly weapons. Rules are needed for targets and targeters alike” (Ignatius, 2010).

Also, practises relating to Ruses of War directly permit camouflaging (Article 37(2), Additional Protocol-I, 1977), however, if biological agents with negative effects are camouflaged to resemble those with positive effects, or are characterised as benign, instead of malignant, it would be counter-productive, implying that IHL has to keep up with changing times of technological and biological developments, else parties would lose the protective umbrella of its outreach. The twin-use conundrum posed by the biological weaponry debate bears a resemblance to the philosophical ‘trolley problem’, however unfortunately, the similarity stops there, since the expanse of biological weapons is more controversial. Its disruptive usage not only has moral repercussions but may also lead to legal complications. 

While addressing the curiosity surrounding biological weapons and their odious, destructive properties, we must leave naivety at the doorstep and presuppose the existence of any and all possibilities speculated by the universe of science fiction and urban folklore. In the domain of biological weaponry, the development of scientific and technological advancements seemingly focuses on a ‘hall of mirrors’ approach, while distorting its own reflections. The potential ramifications of the use of biological agents for offensive purposes are truly a wellspring of terrors in this day and age and with good reason. The international community cannot hide behind its tunnel vision while addressing the growing concerns of the eruptive atmosphere of biological weaponry, and the recommendations suggested above may aid in oiling out such clogged wheels. As has been said by many, law can never be an afterthought, and certainly not a postscript to morality and acerbic biological ammunition. The law governing the usage of biological weapons must resemble a macrocosm, rather than a microcosm, the whole must always be greater than the sum of its parts.  

Bibliography

Ainscough, M.J. 2002. Next Generation Bio-Weapons: Genetic Engineering and Biological Warfare. The Gathering Biological Warfare Storm, pp. 165-186.

Andreasen, N.C. 2001. Brave New Brain: Conquering Mental Illness in the Era of the Genome. Oxford: Oxford University Press. 

Atlas, R.M. 1999. Combating the Threat of Biowarfare and Bioterrorism: Defending against biological weapons is critical to global security. BioScience49 (6), pp. 465-477.

National Center for Emerging and Zoonotic Infectious Diseases. Bioterrorism agents/diseases, Centres for Disease Control and Prevention, available at https://emergency.cdc.gov/agent/agentlist-category.asp, page last reviewed on 4 Apr. 2018.

Block, S.M. 1999. The New Terror: Facing the Threat of Biological and Chemical Weapons. Washington: Hoover Institution Press.

Royal Society Policy document 06/11. Brain Waves Module 3: Neuroscience, February 2012, Conflict and Security

Casadevall, A. 2012. The Future of Biological Warfare. Microbial Biotechnology, pp. 584-587.

Cohen, J. 2019. WHO panel proposes new global registry for all CRISPR human experiments, Science Magazine News. [Online]. 19 March. [Accessed 30 March 2020]. Available from: https://www.sciencemag.org/news/2019/03/who-panel-proposes-new-global-registry-all-crispr-human-experiments.

Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction1972. [Online]. 26 U.S.T. 583, opened for signature 10 April 1972, entered into force 26 March 1975. Available from: http://disarmament.un.org/treaties/t/bwc/text.

Danzig R. and Berkowsky, P.B. 1997. Why should we be concerned about biological warfare? Journal of American Medical Association, pp. 278, 431-32. 

DaSilva, E.J. 1999. Biological Warfare, Bioterrorism, Biodefence and the Biological and Toxin Weapons Convention. 2 Electronic Journal of Biotechnology.

Docherty, B. et al. 2012. Losing Humanity: The Case against Killer Robots. International Human Rights Clinic, Human Rights Watch, pp. 32.

Elements of Crime. 2002. [Online]. U.N. Doc. ICC -ASP /1/3, opened for signature 17 July 1998, entered into force 1 July 2002. Available from: https://www.icc-cpi.int/NR/rdonlyres/336923D8-A6AD-40EC-AD7B-45BF9DE73D56/0/ElementsOfCrimesEng.pdf.

Frinking, E. et al. 2016. The Increasing Threat of Biological Weapons- Handle with Sufficient and Proportionate Care. The Hague Centre for Strategic Studies, pp. 3.

Frith, J. 2012. The History of Plague- Part I- The Three Great Pandemics. 20 Journal of Military and Veterans’ Health, pp. 11.

Henderson, D.A. 1999. The Looming Threat of Bioterrorism. Science, pp. 283, 1279-1281.

International Committee for the Red Cross. No Year. Casebook. [Online]. https://casebook.icrc.org/glossary/fundamental-principles-ihl.

Ignatius, D. 2010. Dazzling New Weapons Require New Rules for War, Washington Post. [Online]. 11 November. [Accessed 30 March 2020]. Available from: https://www.washingtonpost.com/wp-dyn/content/article/2010/11/10/AR2010111005500.html?nav=hcmoduletmv.

International Committee for the Red Cross. 2009. Customary International Humanitarian Law Study. [Leaflet]. USA: Cambridge University Press.

Jansen, H.J. et al. 2014. Biological Warfare, Bioterrorism, and Biocrime. Clinical Microbiology and Infection. 20(6), pp. 488-496.

Kastan, B. 2013. Autonomous Weapons Systems: A Coming Legal “Singularity”? University of Illinois Journal of Law, Technology and Policy, pp. 5, 52.

Ken, A. & Handelman, S. 1999. Biohazard: The Chilling True Story of the Largest Covert Biological Weapons Program in the World-Told by the Man Who Ran It. New York: Random House.

Lawland, K. 2006. A Guide to the Legal Review of New Weapons: Means and Methods of Warfare, Measures to Implement Article 36 of Additional Protocol I of 1977. International Committee of the Red Cross.

Lawrence, R. 2013. Black Biology-A Threat to Biosecurity and Biodefense. 2 Biosafety.

Miller, J. 1999. In Soviet Dump, Deadly germs live on. International Herald Tribune. 3 June. Accessed 30 March 2020.  

Miller, M. et al. 2001. Germs: Biological Weapons and America’s Secret War. New York: Simon and Schuster.

Office of the General Counsel Depart of Defence, Law of War Manual. June 2015, p. 189. Available from https://www. defense.gov/Portals/1/Documents/pubs/Law-of-War-Manual-June-2015.pdf.

Office of the Historian, Bureau of Public Affairs, United States Department of State, Strategic Arms Limitations Talks/Treaty I and II, 3 July 2016.

Pearlman, M.D. 1996. Unconditional Surrender, Demobilization, and the Atomic Bomb. United States Army Command and General Staff College.

Pearson, A., Chevrier, M.I., and Wheelis, M. 2007. Incapacitating Biochemical Weapons: Promise or Peril? Lanham: Lexington Books.

Press, M. 2017. Of Robots and Rules: Autonomous Weapon Systems in the Law of Armed Conflict. The Georgetown Journal of International Law, pp. 1351.

Prosecutor v. Dusko Tadić (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction), IT-94-1, ICTY, 2 October 1995.

Protocol Additions to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts. 1977. [Online]. 1125 U.N.T.S. 3, opened for signature 8 June 1977. Available from: https://www.icrc.org/en/doc/assets/files/other/icrc_002_0321.pdf.

Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare. 1925. [Online]. Opened for signature 17 June 1925, entered into force 8 February 1928. Available from: https://www.un.org/disarmament/wmd/bio/1925-geneva-protocol/.

Public health response to biological and chemical weapons. 2004. WHO guidance Available from: https://www.who.int/csr/delibepidemics/biochemguide/en/.

v. Mohammed Sharif. 2010. Criminal Court of Appeal, England and Wales.

Research and Technology Organization. North Atlantic Treaty Organization. 2004. Non-Lethal Weapons and Future Peace Enforcement Operations’, TR-SAS-040.

Riedel, S. 2004. Biological Warfare and Bioterrorism: A Historical Review. Proceedings. 17(4), pp. 402.

Rogers P. et al. 1999. Biological Warfare against Crops. Scientific American, pp. 280, 70-75. 

Schmitt, M.N. & Thurnher, J.S. 2013. Out of the Loop: Autonomous Weapon Systems and the Law of Armed Conflict. Harvard National Security Journal, 4, pp. 231.

Stewart, A., quoted by Patricia Reaney. 2001. Animal Disease is a reminder of bioterrorism danger. Reuters. 3 September. 

Thomas, B.T. 2015. Autonomous Weapon Systems: The Anatomy of Autonomy and the Legality of Lethality.Houston Journal of International Law, 37, pp. 235.

Toscano, C.P. 2015. Friend of Humans: An Argument for Developing Autonomous Weapons Systems. Journal of National Security and Policy, 8, pp. 196.

Triffterer, O. 2008. Commentary on the Rome Statute of the International Criminal Court. Oxford: Hart Publishing.

United Nations General Assembly, Rome Statute of the International Criminal Court, A/CONF.183/9, 17 July 1998.

Wehner, M. 2019. World Health Organisation joins fight against lax genetic editing standards. BGR. [Online]. 20 March. [Accessed 30 March 2020]. Available from: https://bgr.com/2019/03/20/human-genome-editing-who-framework/.

Wheelis M. & Dando. September 2005. M. Neurobiology: A Case Study of the Imminent Militarization of Biology. 87 International Review of the Red Cross 859.