J P Perry Robinson
31 May 2004
I apologise for the lateness of this contribution, and for directing it to all five documents at once.
First, a point I don’t think is quite as small as it looks. To speak – as in the second paragraph of Document 1 and in several other places too – of international law proscribing “poisoning and deliberate spread of disease” is to imply that poisoning is not itself a deliberate spreading of disease. That would be fine if disease meant only infectious disease and not, more broadly, a state of ill-health. For the time being at least, with both meanings still in currency, we can speak of the norm against weaponization of disease as embracing both chemical and biological weapons. However, that “and” usage suggests, ahistorically and, to my mind, dangerously, that there exist two quite different norms.
Second, a comment about the past and a recommendation following from it. As a way for promoting eradication of CBW, the idea of codes of conduct for scientists has recurred intermittently over the decades. I think I remember Nature (the premier scientific journal) taking up the idea in the early 1980s, doing so under the stimulus of a campaign originating within the community of natural scientists, a campaign that itself revived earlier initiatives by scientists back through the 1970s to the late 1940s. The idea did not take root for two main reasons, I would say: (1) even if a great majority of scientists signed up, the work of only a tiny minority would still suffice to keep CBW going; and (2) scientists are only one of the several categories of people associated with what is the central problem, which is the duality of technologies that are applicable both to legitimate activity and to CBW. Technology was seen even then as the product, not only of the scientists that contribute the special knowledge it exploits, but also of industrialists, investors, policy-makers, regulators, consumers et al. To single out scientists for special treatment was to suggest, falsely, that they were chiefly responsible, and this distorted the search for sound and practicable measures that focussed on duality. Pressing for codes of conduct, as then conceived, could therefore be counterproductive.
Are things different now? Yes. First, the idea is finding support at the governmental level, not just among groups of agitators. The momentum behind it has thus greatly increased. Second, scientists are already becoming subject to the new regulatory measures being imposed by our fighters against bioterrorism. Third, the ICRC has broadened the context of the idea. It is inviting the world to consider the idea, not so much as an anti-CBW measure, but as something altogether larger and more positive. As at Montreux, the common thread in the five background documents now before us is that a fundamental norm of human behaviour is discernible that utterly rejects the use of disease for hostile purposes; that that norm is one of the defining characteristics of our humanity; that the norm is now coming under threat from technological change; and that there is therefore an immense obligation upon us all to find ways of protecting the norm, strengthening it, and building upon it. Within that context, the idea of codes of conduct -- transmuted into ‘principles of practice’ -- is much more powerful and clearly applicable not only to the natural scientists amongst us. The point is that we are all responsible.
This leads me to suggest that the Final Document could lose some of its strength in the Biotechnology, Weapons and Humanity initiative if, through its attention to the practices of the scientist, it does not subsume more explicitly the practices of other people as well.
A way of doing this would be to place a more obvious stress on concepts of responsibility and accountability of the individual, not just of the individual scientist. If indeed we are all responsible for the norm, then the onus is on us as individuals to uphold it. Some people can be active in some areas, others in other areas, wherever they lead their lives. It is that principle of individual responsibility which has stimulated the whole idea of propagating codes of conduct or principles of practice. Governments and other levels of organization higher than the individual of course have their parts to play. Yet the five documents seem to place an emphasis on those higher levels greater than their emphasis on the individual, save insofar as they contemplate appeals for self-questioning or self-restraint by the individual scientist. The documents appear to advocate bottom-up activity by scientists and their immediate associates but no one else. So should not the ICRC also consider where else in its initiative it could advocate additional emphasis on individual responsibility?
To my mind, which happily is ignorant of the special constraints within which the ICRC may be obliged to operate, there is one obvious area: strengthening those ‘legal norms’ to which the documents make frequent reference. Because the ICRC is the appointed and accepted keeper of international humanitarian law applicable in armed conflict, the ICRC may be expected to have views on, for example, how that law might best be developed in order to incorporate more fully concepts of individual responsibility. In fact, it might seem rather odd if the ICRC did not express itself on this matter while dwelling on individual responsibilities in biotechnology. Here, surely, is opportunity for the ICRC to act to strengthen the norm in a way that would both complement and provide balance to its work on principles of practice.
It is all very well saying that budding scientists should be taught about the 1925 Geneva Protocol, the 1972 Biological Weapons Convention and the 1993 Chemical Weapons Convention, which are indeed codifications of the norm in international law. But, in the present state of the international legal regime expressing the norm, the three treaties cannot, contrary to what is suggested in Document 2, have much direct impact on the work of scientists. They place their primary constraints on the behaviour of states, not of individuals. What is needed, therefore, is some way of developing the regime so that its relevance to the individual becomes apparent to all.
It is through the concept of crime for which individuals may be held accountable
in courts of law that the idea of individual responsibility has its chief legal
expression. The ending of the Cold War has allowed the concept of ‘international
crime’ to advance also. The national criminalization of CBW armament –
making individuals accountable in domestic law for involvement in any such armament
process – has already been pressed forwards by some governments, and,
although disregarded by many states parties, is actually a formal obligation
under the Chemical Weapons Convention. Would there not now be benefit if the
ICRC were to contemplate, in public, ways and means for the international criminalization
of CBW armament as well? Would such action not set the drive for principles
of practice into a universal context countervailing its intrinsically discriminatory