The expanding range of biowarfare threats

Discussions of security risks will eventually have to take account of the readiness of governments to address them and agree on practical solutions. The Second Review Conference of the Chemical Weapons Convention (CWC), which included representatives from 114 national governments, has just completed its work--how did it deal with the issues identified in this roundtable?

Several countries raised the possible implications of using incapacitants for law enforcement purposes, but the conference took no action. And it did not set up a mechanism, such as the advisory panel suggested by Jonathan Tucker, to further evaluate the matter. This inaction does not preclude future discussions within the Organisation for the Prohibition of Chemical Weapons (OPCW), which is responsible for implementing the convention, but it may make those discussions more difficult. I would be skeptical about pursuing the debate further through the OPCW's Scientific Advisory Board. Some representatives at the recent review conference attempted to create a "filter" between the advisory board and the OPCW's political organs. In the end, it requested the OPCW's director-general to provide advice on how governmental experts can be involved in the interaction between the advisory board and the policy making organs of the OPCW. In any event, the issue of incapacitants is not primarily about new science, which is the domain of the advisory board, but about legal boundaries.

I agree with Alan Pearson that any further debate needs to start by evaluating the core principles underlying the CWC. The question is whether states can agree on criteria to determine when types and quantities of toxic chemicals are no longer consistent with law enforcement. I doubt whether debating the toxicity of chemicals in itself is of much use as Fidler seems to suggest (see Pearson's first posting in this roundtable). The other idea suggested, namely that one can control the effects of agents (and use controllability to establish which agents are legitimate) is at odds with the complexity and diversity of human beings and the unpredictability of operational conditions under which such weapons would be used. States may need to address other factors such as dissemination methods, delivery systems, tactics, and how to ensure transparency in activities that may well be perceived by others as the beginning of an offensive chemical program.

In general, the delineation of legitimate uses would have to be set in the context of the broader undertaking not to develop, produce, stockpile, or use chemical weapons. This is the crux of the problem. If one accepts that toxic chemicals can be weaponized for law enforcement purposes, how does one draw that line?

I cannot predict the outcome of this larger discussion, but the solution needs to be practical, scientifically sound, and consistent with the core principles of the CWC. I am skeptical about that solution taking the form of agreed criteria, standards, and methods to determine whether a toxic chemical or delivery system is consistent with law enforcement purposes. That would suggest an essentially open-ended approach where compliance would rest on how individual states interpret and apply these criteria.

On the related question of how the industry verification regime of the CWC should evolve further, the Review Conference gave some general guidance but failed to conceal significant disagreements between States Parties about which types of activities and facilities pose a risk to the CWC. New initiatives, along the lines suggested by Tucker, were given little room for discussion.

One piece of good news did come from the conference. In the context of reviewing the verification of "other chemical production facilities," the conference noted "the desirability of directing inspections towards facilities of greater relevance to the object and purpose of the Convention and of removing irrelevant facilities from the declarations and inspections," and asked the OPCW's director-general to explore options on the issue. This process could create an opportunity to further the discussion of risks associated with bioregulators and peptides. But I'm not overly optimistic, as proposals must be consistent with the present set of provisions for other chemical production facilities, meaning there will be no new declaration requirements or verification provisions.

In his latest comment, Tucker raised the issue of genetically engineered bacteria as a delivery vehicle for bioregulators. I agree that this belongs in the realm of the Biological and Toxin Weapons Convention. I would argue that the common understandings developed by its States Parties over the years ensure that such bioengineered delivery systems are covered under its prohibitions, but of course there is no international routine system to verify treaty compliance.

Finally, Tucker raised the potential use of bioactive peptides in interrogations of alleged criminals or terrorists and asked whether ongoing academic and pharmaceutical research on bioactive peptides that regulate neural circuits in the brain may produce new drugs that could enhance interrogation in a reliable and predictable manner. I don't want to speculate how likely that is from a scientific point of view, but whether the use of such compounds would be legitimate under the CWC is only half the question. Even if it was considered lawful within the CWC framework, legitimacy should involve a broader examination of medical risks as well as ethical questions related to interfering with the personality and cognition of individuals for law enforcement purposes.

On the issue of incapacitants, my colleagues and I are pretty much in agreement--States Parties to the Chemical Weapons Convention (CWC) should establish clear boundaries between prohibited chemical weapons and toxic chemicals and delivery systems that are permitted for law enforcement purposes. Then they should develop mechanisms to ensure that states abide by their agreements.

Ralf Trapp is concerned that my proposal--that States Parties pursue agreed criteria, standards, and methods to determine whether a toxic chemical or delivery system is consistent with law enforcement purposes--appears to presuppose that states have agreed to discard the "narrow" interpretation of the CWC's law enforcement clause that only riot control agents are allowed. I disagree. Fifteen years of experience has shown that framing the discussion in terms of whether or not law enforcement agents include more than riot control agents has been unproductive. It has enmeshed debates about what agents might be permitted for law enforcement purposes with debates about whether riot control agents are toxic chemicals. These two issues are related, but it would be more productive to put aside the second issue for now in order to focus on the first.

This framing also fails to recognize how advances in science and technology increase the potential for states to seek opportunities within the CWC's definition of a riot control agent. For example, the powerful anesthetic remifentanil, related to the agent used to resolve the Moscow theatre hostage crisis, might well qualify as a riot control agent if one narrowly interprets the CWC. Yet common sense tells us that such an agent would be qualitatively different from the tear gasses and pepper spray that comprise present stockpiles of riot control agents.

For these reasons, it's time to move away from the question of whether law enforcement agents are limited to riot control agents and toward addressing the core principles underlying the CWC. The end result can't be predicted, but such an exercise could find that only agents that are more or less like today's riot control agents meet the agreed criteria and standards. Other outcomes are also possible. But at least the findings would be built on the foundations of the CWC, and all states would be better positioned to control the resulting situation than if they continue to avoid discussion and let developments happen state-by-state.

Tucker suggests that to address incapacitants, States Parties should create a new subcategory for declaring "other chemical production facilities" that manufacture peptides in quantities exceeding a certain threshold. This proposal is intriguing but inadequate, because most of the incapacitating agents of concern are unlikely to be peptides. For example, most of the more than two dozen potential incapacitating agents identified in the Applied Research Laboratory report Tucker initially refers to are non-peptide chemicals.

Both Aas and Trapp point out that developing a verification system for addressing the convergence of chemistry and biology will be extremely challenging. Indeed, the convergence is rendering the chemical weapons problem increasingly like the biological weapons problem, with the number of potential threat agents expanding to the point that traditional means of agent-specific control are becoming inadequate. States need to develop mechanisms to verify compliance with basic CWC prohibitions rather than simply verifying that adherents don't possess a specified list of chemicals. This is a more difficult task, and I agree with Trapp that the CWC was not designed to deal with this situation. Thus states will need to explore other avenues for verification. The central goal must be to find ways of increasing transparency and reporting about chemical activities and holdings, both to other states parties and to the public. The greater the transparency, the more likely non-transparent states will stand out.

A final thought: Even though the Biological and Toxin Weapons Convention does not directly involve incapacitants, biology and biologists certainly will be involved in their development. Researching new incapacitating chemical weapons will require using the latest in biological knowledge and technologies. Life scientists have generally been able to avoid the arms control implications of their fields because the biological weapons problem has largely been perceived as far removed from their work. If states opt to develop incapacitants, scientists will no longer be able to avoid the issue. Then, life scientists individually and as a community will either allow themselves to become enamored with visions of "humane" chemical weapons, as scientists have in the past, or will have to resolutely resist their development.

The potential misuse of advances in the life sciences by terrorists cannot be ignored--there is evidence both of intent and rudimentary capability. But I agree with Pal Aas that these threats can be exaggerated. Even if terrorists could manage aspects of the development, testing, and production of a novel agent, weaponization remains a challenge. Therefore, opportunistic approaches, such as the diversion of toxic or infectious materials from available sources, are far more likely.

I agree with Jonathan Tucker that we need to worry about scientists being recruited by terrorist organizations, as well as "biohackers." I also agree that they would need both explicit and tacit knowledge to transform a candidate novel agent into an effective weapon. I nevertheless feel that the threat is limited and the potential impact more local than it is sometimes portrayed. Tucker's point that the current preoccupation with "dual-use research of concern" in the life sciences is based on the belief that terrorists will eventually exploit cutting-edge advances for hostile purposes, however, is too narrow a view--what about the potential "siphoning-off" of new discoveries by states, inadvertent discoveries, or lab accidents. Plus, it does not take new life science research for terrorists to acquire a chemical or biological weapons capability--just think of the animal diseases, plant diseases, and materials and wastes that are all around us.

Additionally, neither the Biological and Toxin Weapons Convention (BWC) nor the Chemical Weapons Convention (CWC) is truly universal, and some states outside these treaties have the scientific capacity to pursue chemical or biological weapons and perceive their security to be threatened enough that they could be tempted to do so. The historical record, furthermore, shows that some States Parties to these treaties might try to exploit grey areas in the margins of their legal undertakings. This is why we need to resolve the incapacitants issue.

In regard to incapacitants, I agree with Pearson that the problem is more one of a redefinition of acceptability than of advances in science and technology. Thus, CWC States Parties may need to discuss ways to rework declarations and perhaps verification protocols. But first they need to agree where to draw a line between chemical weapons, and chemicals and delivery systems acceptable for law enforcement use. Tucker's proposal for an advisory panel on this matter is therefore important. It could draw on the recent academic debate, but it must also commit States Parties to resolve the issue in full appreciation of the long-term impact of their decision on the CWC. Pearson suggests that this process should result in criteria, standards, and methods for determining whether a toxic chemical or delivery system is consistent with law enforcement purposes. This seems to presuppose that states have discarded the "narrow" interpretation of the law enforcement clause that only riot control agents are allowed, and I am not sure that this is indeed so.

On the broader question of what to do about the growing cross-over between chemistry and biology, the "other chemical production facilities" regime would likely be involved, as both Tucker and Aas point out. This regime is the only tool in the CWC that could meet demands for transparency and control in this evolving field of science and technology.

I'm concerned, however, that the CWC was never designed to deal with the types of facilities and activities that would need to be covered. Tucker acknowledges this when he proposes a new subcategory for peptides with a declaration subthreshold high enough to exclude university and research facilities but low enough to capture commercial peptide production plants that could support a state-level biochemical weapons program. Even with a high threshold, however, it may not be easy to marshal the necessary political support from States Parties and acceptance from industry. States Parties, relevant companies, and industry associations need to explore more thoroughly what can, and what cannot, be done. The persistent lack of agreement on a verification scheme under the BWC demonstrates that there are limits to the acceptability of international verification at advanced biotech facilities. At the same time, the progress in national BWC implementation (including a closer association of security and safety issues) and the work toward codes of conduct and other self-regulatory measures in industry, research, and academia point to avenues that should be further explored by the Second CWC Review Conference.

All of the participants in this roundtable have identified states and their interest in incapacitating chemical weapons as the primary cause of concern regarding bioregulators and their chemical analogs. This may seem strange to readers in the United States where discussions of biological and chemical weapons overwhelmingly focus on terrorism. But my colleagues are right. Not only are states expressing interest in the developments Jonathan Tucker describes, which they believe will provide the basis for "usable" (i.e. useful and politically acceptable) chemical weapons, but only states have the capabilities needed to see the development of such weapons through from agent discovery to weapons deployment.

As Ralf Trapp points out, interest in incapacitating chemical weapons is not new. In fact, for nearly 60 years, advocates for such weapons have been able to convince funders that, because of advances in science and technology, "usable" incapacitating weapons are just around the corner. Yet somehow the promised incapacitants never seem to arrive. That today's scientific advances are enabling new ways of manipulating human physiology and brain function does not necessarily mean that new chemical incapacitants are any more likely to be "successful" than the old.

That said, Trapp's point that the mere possibility of "success" could suffice to stimulate research and development of new incapacitating chemical weapons has repeatedly been proven. Even more, the belief that researchers have developed an "acceptable" weapon could lead its use, as occurred in Moscow in 2002. For now, I am more concerned about these beliefs than I am about the possibility that a truly nonlethal incapacitating chemical weapon could be developed. The reason lies in the malleability of the concept of acceptability, which varies according to time, place, and context. I'm concerned that increased interest in incapacitants will generate pressures that lead to the use and proliferation of weapons that are deemed "good enough." In other words, if and when "success" comes, it may be due more to a redefinition of acceptability than to advances in science and technology. Then, the institutionalization, conventionalization, and marketization of the new chemical weapons (whereby they become more like small arms sold in the global market than like strategic weapons held by a restricted number of states) may well lead to an ever-expanding definition of acceptability, ever-broader range of uses, and a more powerful array of new and improved agents. (As a corollary, scientific debates about the likelihood that researchers can develop truly nonlethal chemical weapons will play a larger role in determining whether incapacitating weapons are developed and, especially, used than Trapp may grant.)

My colleagues also appear to agree that the States Parties to the Chemical Weapons Convention (CWC) must somehow set limits on the types and quantities of toxic chemicals that can be used for law enforcement, and ultimately must establish measures for monitoring and verifying compliance with these limits. But what limits, and how to set them?

Tucker proposes a "modest" first step--that States Parties declare their stocks of law enforcement chemicals and delivery systems. This could be useful if the declaration mechanism includes a specific definition of "law enforcement chemicals." Without a specific definition, States Parties could use the declaration mechanism to try to legitimize a wide and potentially open-ended range of chemicals for law enforcement purposes. An agreement to develop such a mechanism would provide a focal point for efforts to develop criteria, standards, and methods for determining whether a toxic chemical or delivery system is consistent with law enforcement purposes.

States Parties would have to address the central question raised by Trapp--what is the difference between prohibited and permitted chemicals? This question is really two questions: What actions qualify as law enforcement purposes under the CWC, and what characteristics of toxic chemicals are and are not consistent with such purposes? The first question relates to the hotly contested boundary between law enforcement and armed conflict, an issue that extends beyond the CWC. In the context of the CWC, the term clearly means more than domestic riot control. I believe that it means less than counterinsurgency operations, and that it excludes mixed combatant/noncombatant situations.

While complete resolution of this question within the CWC seems unlikely, even partial agreement would inform discussions of the second question, which falls squarely within the CWC. Nothing in the convention prevents States Parties from setting whatever criteria they collectively agree on, except that chemicals listed in Schedule 1 of the Verification Annex (like mustard and nerve gases) are definitely prohibited for law enforcement purposes. Some observers suggest that law enforcement chemicals be limited to those which meet the definition of riot control agents ("any chemical not listed in a Schedule, which can produce rapidly in humans sensory irritation or disabling physical effects which disappear within a short time following termination of exposure"). However, powerful States Parties, including the United States and Russia, are not inclined to agree.

Perhaps there is another approach. Law Professor David Fidler argues that, based on international human rights law, the more toxic a chemical is and the more difficult it is to control the effects of its use (i.e. to control the individual dosage received and/or the exposure conditions), the less likely that the chemical is of a type consistent with a legitimate law enforcement purpose. Might it be useful to incorporate the concept of controllability into the definition of law enforcement chemicals? For example, could they be defined as chemicals that produce "reliably controllable and temporary incapacitation which disappears within a short time following termination of exposure?"

Tucker proposes that the States Parties establish an advisory panel to explore the full range of relevant issues and provide a menu of policy options for regulating incapacitants. Such a panel could be the focal point for discussions leading to a declaration mechanism. Julian Robinson has suggested establishing an open-ended working group [PDF] with a mandate to develop guidelines for interpreting the law enforcement exemption, but not pursuing a declaration mechanism at this time. Whatever States Parties decide, they should begin a joint process of thoroughly examining Trapp's question. And whatever the outcome of this process, it should result in criteria, standards, and methods for determining whether a toxic chemical or delivery system is consistent with law enforcement purposes.

The title of Jonathan Tucker's article could easily have been "the body's own chemical weapons." I'm making this point to highlight the convergence between biology and chemistry--a development whose implications for arms control needs further study. The emergence of new chemicals that interfere with brain functions or other regulatory processes in humans (such as bioregulators and neuroactive peptides) is a key feature of this crossover.

Military interest in this type of toxic chemicals is not new; what is new is the scientific potential opened up by the biological revolution, combined with advances in engineering and information technology. Scientists' expanding understanding of biological systems combines with advances in particle engineering and the promises of nanotechnology for the development of "smart" delivery systems to carry biologically active chemicals to specific target organs or receptors. The synthesis of complex molecules of biological origin including peptides has also become much easier than in the past.

At the same time, the demand side is evolving, with military requirements adapting to the changing nature of warfare. So-called nonlethal weapons are drawing attention, and scientists are assessing incapacitating chemicals that interfere with human body functions and should have pharmacological safety margins sufficient to avoid killing the target population. To be clear, scientists debate whether it is possible to develop chemical or biological agents that can satisfy the requirement of "non-lethality." (See this recent British Medical Association report). But this discussion misses an important point: The mere fact that there may be an agent that may satisfy the requirements to an extent that may be judged acceptable could suffice to stimulate research and development of new incapacitating agents.

The implications for the Biological and Toxin Weapons Convention (BWC) and the Chemical Weapons Convention (CWC) could be serious. Both treaties approach the weapons they ban in a comprehensive manner, defining the purpose (intent) of using an agent for weapons purposes as the criterion for deciding whether a chemical or biological material is a prohibited weapon or a legitimate material. That consideration also applies to incapacitants. Contrary to Tucker's argument, the status of incapacitants under the CWC is far from ambiguous; or rather, if their status was ambiguous, the status of any toxic chemical, whether lethal or incapacitating, would be, too.

The CWC has some contradictions, though. It allows toxic chemicals to be used for law enforcement purposes, including domestic riot control. Yet, it unequivocally bans the development, acquisition, stockpiling, and use of chemical weapons. Is it possible to distinguish whether a toxic chemical or a delivery system are intended solely for law enforcement purposes and not as a new chemical weapon? What features, characteristics, and parameters would be consistent with law enforcement, and which stipulate chemical weapons? Neither question has a simple answer. Restrictive interpretations of the convention limit the law-enforcement clause to a state's rights to use certain toxic chemicals for domestic riot control; liberal interpretations accept a range of possible uses of any toxic chemical under a state's jurisdiction but call for voluntary declarations to enhance transparency.

Tucker suggests that States Parties should limit the types and quantities of toxic chemicals that they stockpile for law enforcement purposes. He also proposes ways to modify the CWC's verification system to take account of the risks associated with bioregulators. In my view, before one can address the second proposal, there needs to be a common answer to the first one. CWC States Parties have so far failed to discuss the use of incapacitants for law enforcement purposes--this question was in the "too-difficult" category. Expecting the upcoming CWC Review Conference to resolve this issue would be setting it up for failure.

Scientists and policy makers have publicly debated many of the issues related to the use of incapacitants for law enforcement purposes, and States Parties should initiate a thorough discussion of the matter at the state level. This discussion should aim to clarify the demarcations between legitimate developments and prohibited activities. Such a discussion would also help to understand possible verification requirements for the crossover between chemistry and biology. In Julian Perry Robinson's words, the creeping legitimization of incapacitants would lead to a new generation of psychochemical weapons. If ignored, this issue could weaken the fabric of the CWC and open the door for a resurgence of chemical warfare of a new kind.