An International Criminal Law Approach to Bioterrorism
Kellman, Barry, Harvard Journal of Law & Public Policy
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.
II. THINK GLOBALLY
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. …