Making Biological Terrorism an International Crime
by Professor Barry Kellman
Depaul University College of Law

           Biological terrorism (B-T) is not an international crime. The BWC prohibits States from possessing or using BW. States must criminalize private BW activity, but whether they've done so is remarkably unclear. The implications of this legal gap are crucial to preventing a catastrophic B T event.
          To be clear: an actual released of a BW device, causing death and disease, would be a crime, and law enforcement officials could pursue the matter. The problem here is that the effects of such use are too cataclysmic to delay employing law enforcement until the deed is done. A more effective criminal law enforcement effort against B-T should focus on preparation and planning activities, not only on the actual commission of an attack. But gaps in relevant international law -- notably, no primary prohibition against possession of pathogens nor critical weaponization equipment -- marginalizes law enforcement capabilities, at least until those capabilities explode into catastrophe.
          Making B-T an international crime would clearly establish a powerful norm and, more important, would facilitate detection and interdiction. As to international crimes, legal assistance and cooperation among national police agencies enables one State to request that police in another State conduct an investigation, immobilize evidence, make arrests, and, if appropriate, extradite or prosecute the perpetrators of that crime. While some States will agree to such requests informally, compulsory mechanisms operate only if the crime is consistently defined under international law.
           Also international criminalization means that the capabilities of trans-national law enforcement institutions such as Interpol and the World Customs Organization may be invoked. It is noteworthy that among the many task forces and commissions established by these institutions or by the UN, none is dedicated to preventing biological criminality. Therefore, there is no centralized data bank that would correlate suspected terrorist activity with questionable bio pharmaceutical programs. Nor are there specialized training programs (as there are for combating smuggling of drugs or nuclear materials) for customs officials to help them detect illegal movement of dangerous pathogens.
           As has been noted in this publication, the Harvard Sussex Program's draft treaty to criminalize CW and BW activities goes far toward satisfying the points made here. However, it fails to provide mechanisms to detect illegal B-T preparations (leaving that responsibility to States). Because materials and equipment to engage in B-T are dual-use and because we must distinguish what those items are used for before there is an attack, criminalization must apply not only to the perpetrators of a crime, but to their suppliers.
          The point here is that making B-T an international crime should include receiving, supplying, or smuggling weapons precursors or critical equipment unless that activity is declared and subject to appropriate national and international regulation. Legitimate users of such items may avoid criminality by registering their activities, but non-compliance with relevant regulatory obligations should be prima facie evidence of an international crime.
          It is here that international lawyers need the guidance of the international scientific community. How can pathogens useful for terrorist purposes be readily distinguished from pathogens of little concern? What equipment is especially useful for developing a B-T capability, and how can we monitor the traffic in such equipment without needlessly interfering with legitimate research and pharmaceutical activity? What types of information about the flow of these items (as well as the expertise to use them) should be included in a data bank to be useful without being unmanageably inclusive?
          While lawyers can write treaties and assign tasks to institutions, nothing in legal training equips us to address these and many related questions. Cross-disciplinary cooperation is needed, and time, unfortunately, is not on the side of the angels.

Editor's Note: Professor Barry Kellman is well noted for his expertise across the legal spectrum of the issues involved in weapons of mass destruction. He has lectured extensively including providing legal training during programs for OPCW personnel. Barry is also a CBMTS member.

01-3, issue no. 84