Ukraine Symposium – Russia’s Allegations of U.S. Biological Warfare in Ukraine – Part I

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| Dec 2, 2022

Biological weapons

During its invasion of Ukraine, Russia has accused the United States and Ukraine of collaborating to develop biological weapons in violation of international law. Russia’s claims led to a “formal consultative meeting” in Geneva pursuant to Article V of the Biological Weapons Convention.

In this post, which is in two parts, I analyze Russia’s biological warfare claims in light of the 1972 Biological Weapons Convention. In Part 1, I narrate the factual dispute between Russia and the United States concerning the development of biological weapons in Ukraine. Then, I review the Convention’s rules, obligations, and rights and discuss how they may apply in this case.

In Part 2, I examine the Biological Weapons Convention’s dispute resolution mechanisms. Doing so highlights well-known deficiencies in the Convention’s means of ensuring compliance and enforcement of its rights and obligations. This discussion affords an opportunity to evaluate the Convention’s normative force as an instrument of international law. I argue that one’s conclusion about the Convention’s value depends in part on one’s perspective as to what precisely international law achieves in the context of disputes between States – especially powerful ones – as well as what the realistic prospects are for increasing law’s effectiveness.

Background

In March 2022, still in the initial phase of its Ukraine invasion, Russia claimed to have found evidence that the United States and Ukraine developed biological weapons in violation of international law. Russia publicly asserted it found “evidence of an emergency clean-up performed by the Kiev regime,” which was “aimed at eradicating traces of the military-biological programme, in Ukraine, financed by” the U.S. Department of Defense. Amplifying Russia’s claim, a Chinese Foreign Ministry spokesman stated that Russia uncovered “26 bio-labs and other related facilities in Ukraine,” which the U.S. Department of Defense used “to conduct bio-military plans” and over which it had “absolute control.”

A White House spokeswoman called the Russian claims “preposterous” and responded that it “does not develop or possess [biological] weapons anywhere.” The U.S. State Department described the Russian claims as “total nonsense,” asserting that Ukraine also has no biological weapons labs.

Prior to the invasion, Russia did not use the threat of biological weapons in Ukraine—or U.S. production of such weapons in Ukraine—as a basis for its “special military operation.” However, President Vladimir Putin asserted in April that a “network of Western bioweapons labs” constituted one of the justifications for its invasion.

During the war, Russia has repeatedly raised concerns about U.S. biological warfare at the United Nations Security Council. In response, the U.N. Under Secretary General and High Representative for Disarmament Affairs twice told the Security Council that “there was no evidence of any biological weapons programs in Ukraine.”

On June 13, 2022, Russia submitted diplomatic notes to the United States and Ukraine detailing concerns about their compliance with the Biological Weapons Convention. In particular, Russia raised questions about U.S. involvement in “activities of biological laboratories in the territory of Ukraine.” The original diplomatic correspondence is not publicly available, but Russia later characterized it as seeking a “bilateral consultative process” with the United States and Ukraine concerning their implementation of Articles I and IV of the Biological Weapons Convention.

On June 29, asserting it had not received the “necessary explanations,” Russia requested a formal consultative meeting under Article V of the Biological Weapons Convention. The meeting would aim at “resolving the issues with the United States and Ukraine regarding their compliance” with the Convention “in the context of operation of biological laboratories in the Ukrainian territory.”

The formal consultative meeting took place on September 5-9 in Geneva. In addition to Russia, the United States, and Ukraine, more than 80 States attended. The meeting was not open to the public, but rather only involved States Party and signatories to the Biological Weapons Convention. Thus, although States’ documentary submissions have been cataloged, details about the Geneva discussions are not publicly available.

According to the U.S. State Department, delegations from 35 of the attending States either dismissed Russia’s claims or expressed support for the scientific research the United States and Ukraine were conducting. Some States supported Russia’s claims, including Belarus, Cuba, Iran, Nicaragua, Syria, and Venezuela, although the extent of these States’ support is not clear. China did not endorse Russia’s claims, but its representatives expressed that China was “deeply concerned” about them, calling for an independent international investigation of U.S. biological research.

Russia’s accusations are not new, but rather are part of a long-standing and sustained pattern of unsupported declarations of U.S. development of biological weapons. In 1983, Russian intelligence agents placed an anonymous letter in an Indian newspaper alleging that the United States manufactured the virus that causes AIDS in a military experiment at Fort Detrick, Maryland. In 2008, Russia made unproven claims about an American-financed biological laboratory in the former Soviet republic of Georgia. After an exhaustive historical review of Russian allegations, one researcher concluded that, beginning in the aftermath of the Second World War and lasting until its collapse, the Soviet Union “maintained a nearly continuous campaign of false allegations of biological-weapon use by the United States.”

A Detailed Review of the Russian-U.S. Dispute

Russian Allegations

As detailed in documents submitted to the United States and Ukraine, Russia claims to have uncovered evidence in Ukraine of U.S. “military-biological activities” that violate the Convention. This evidence includes references to U.S. and Ukrainian development of “dangerous pathogens,” such as cholera and anthrax. Russia suggests the United States has handled “pathogens of dangerous infectious diseases that are potential agents of biological weapons.”

In more detailed passages, Russia further alleges it uncovered evidence in Ukraine of U.S. “projects to study the [possible] spread [of] dangerous infections . . . through migratory birds and bats (including pathogens of plague, leptospirosis, brucellosis as well as coronaviruses and filoviruses that are potentially infectious to humans) that can be considered as delivery means.” Crossing into absurdity, Russia then raises “unanswered” questions respecting a U.S. “unmanned aerial vehicle [UAV] for the aerial release of . . . infected mosquitos”—that is, “a device (unit) designed . . . as a technical means of delivery and use of a biological weapon.”

These alleged projects are designed to spread “highly contagious” agents, including “bacteria and viruses,” that “could wipe out 100 percent of the enemy[’s] troops.” Russia claims to have evidence that the weaponized mosquitos would “attack” enemy troops, infecting them “with highly contagious diseases via mosquito bites.” The U.S. program documents allegedly assert that “[s]ickness can be a very valuable military tool” and “infecting an enemy[’s] manpower in such a way would [have] significant military effect.”

In conclusion, Russia contends that the U.S. “military-biological activities” in Ukraine fall within the scope of the Biological Weapons Convention and constitute a violation of international law.

U.S. Response

The United States forcefully rejects Russia’s factual claims. The United States has denied involvement in biological weapons programs and that it operates “secret biological labs in Ukraine and other countries along Russia’s periphery.”

Rather, the United States has said that it provides financial and technical assistance “to dozens of countries, including at one point Russia itself, to protect biological security and public health.” The United States publicly acknowledges funding biological research and assistance in Ukraine and other former Soviet Union republics under the Biological Threat Reduction Program. The Program, originally designed to dismantle Soviet-era nuclear, chemical, and biological weapons after the Cold War, currently focuses on “supporting biological research laboratories that are crucial to monitor and prevent diseases from spreading.”

Furthermore, the United States acknowledges participation in scientific research designed to reduce global biological threats. For example, the United States notes a 2005 agreement with Ukraine to cooperate in researching and developing means to “reduce and eliminate the risk of biological weapons development and proliferation.” The latter includes “biological research” and “biological threat agent detection and response” efforts designed to “reduce the risk of threat or unauthorized use of dangerous pathogens” at Ukrainian research facilities.

The United States admonished Russia for “mischaracterizing” U.S. biological research activities and for drawing “little or no connection” between its factual assertions and legal compliance issues related to the Biological Weapons Convention. As one example, the United States explained that personnel in Ukraine that Russia referred to as “biological weapons experts” were in fact diplomatic and project management personnel performing duties under publicly available agreements to ensure biological clinical samples were safely collected, stored, and transported.

The Biological Weapons Convention

History and Drafting

After the Second World War, the United Nations called on States to eliminate all weapons “adaptable to mass destruction,” including biological weapons. Throughout the 1950s and 1960s, States debated issues related to general disarmament as well as special problems of biological warfare. In 1971, these efforts resulted in the creation of the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, known as the Biological Weapons Convention.

The Biological Weapons Convention operates as an arms control and disarmament treaty, prohibiting the development, production, acquisition, transfer, and stockpiling of biological and toxin weapons. It was opened for signature in 1972 and entered into force on March 26, 1975. Currently, the Convention has 183 States Party, including the United States, Ukraine, and Russia, as well as four State signatories.

The Biological Weapons Convention is not the only international legal instrument governing biological weapons and warfare. In 1925, a League of Nations international convention concluded a Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare (known as the Geneva Gas Protocol). The Protocol, which expressly prohibits the use of “bacteriological methods of warfare,” has 146 States Party, including the United States, Ukraine, and Russia.

Scope of Applicability

Article I of the Biological Weapons Convention contains the criteria for its scope of applicability. Article I prohibits States from developing, producing, stockpiling, or otherwise acquiring or retaining (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,” as well as (2) “weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict.”

The Convention does not define the terms of Article I, including most notably “microbial agents,” “other biological agents,” “toxins,” and “prophylactic, protective or other peaceful purposes.” This absence is significant, as it leads to ambiguity in understanding the Convention’s threshold criteria, which serve as the gateway to applying the Convention’s rights and obligations. The challenge is especially acute given the risk of ambiguity inherent in efforts to integrate scientific and medical notions in law.

Some have offered definitions for key terms in Article I. For example, in a World Health Organization report published the year before the Convention’s completion, “biological agents” is defined as “those that depend for their effects on multiplication within the target organism, and are intended for use in war to cause disease or death in man, animals or plants.” Somewhat similarly, a 1969 United Nations expert report on chemical and biological weapons defines “bacteriological (biological) agents of warfare” as “living organisms, whatever their nature, or infective material derived from them, which are intended to cause disease or death in man, animals or plants, and which depend for their effects on their ability to multiply in the person, animal or plant attacked” (p. 6).

An influential 2003 report by the UN Institute for Disarmament Research further offers definitions for both “biological weapon” and “biological agent.” According to the report, a “biological weapon” is a “device or vector that delivers biological agents to [a] target.” A “biological agent” is “infective material that causes death or incapacitation through its pathogenic effects.” Such an agent “can be used against man, animals, or plants” and usually “penetrate[s] the human body through the respiratory or digestive system.” Additionally, the report defines “toxins” as “non-living poisonous by-products of plants, animals, micro-organisms, or artificial chemical synthesis.”

States have not endorsed or adopted definitions for Article I in a coordinated or systematic way, instead offering guidance on an ad hoc basis. For example, the U.S. Department of Defense Law of War Manual does not define “biological agent,” but does identify “toxins” as “poisonous chemical substances that are naturally produced by living organisms, and that, if present in the body, produce effects similar to disease in the human body.” The North Atlantic Treaty Organization (NATO) defines “biological agent” as a “microorganism or toxin that causes disease in humans, plants, or animals or that causes the deterioration of materiel” (accessible through “search” function). Notably, however, the NATO definition is not expressly linked to the Biological Weapons Convention.

Rights and Obligations under the Treaty

States’ main obligation under the Biological Weapons Convention—noted above—is the Article I prohibition against developing, producing, stockpiling, acquiring, or retaining biological agents or toxins, as well as weapons, equipment, and means of delivery designed to use such agents or toxins. Additionally, Article IV requires States to “take necessary measures” to ensure their territory is not used to develop, produce, acquire, or retain biological agents, toxins, or materiel that falls within the scope of the Convention.

Article III of the Convention serves as a rule of complicity, prohibiting States from assisting, encouraging, or inducing another State or international organization to produce or acquire agents, toxins, weapons, or equipment that falls within the scope of Article I. Article VIII invokes the 1925 Geneva Protocol, asserting that States Party to that instrument remain bound by its prohibition against “bacteriological methods of warfare.”

Finally, under Article X, States retain the right to participate in scientific research concerning biological agents and toxins for peaceful purposes. The article also protects States’ ability to cooperate on biological research that furthers disease prevention and scientific discovery, including the economic development associated with such discoveries.

The Convention’s Applicability to the U.S.-Russia Dispute

The factual dispute established above makes it difficult to form conclusions regarding U.S. and Russian rights and obligations in this case.

If Russia’s allegations are based in truth, its conclusions that the United States and Ukraine violated the Biological Weapons Convention would be supportable. The weaponization of pathogens and infectious diseases to target enemy combatants falls squarely within the scope of Article I and therefore is prohibited under the Convention.

Furthermore, the use of such weapons during armed conflict would undoubtedly violate the 1925 Geneva Protocol’sprohibition against “bacteriological methods of warfare.” Similarly, the alleged facts would support a finding that the United States violated the Articles III complicity prohibition and Ukraine breached its obligation under Article IV to prevent unlawful biological weapons development within its territory.

However, if the claims of the United States and Ukraine are to be believed, it seems clear that they have not violated the Biological Weapons Convention. In its filings at the Geneva meeting, the United States asserted that all of its “biological-related activities” in Ukraine and elsewhere “are for peaceful purposes and fully consistent with its obligations under the Convention.” Thus, the facts as presented by the United States indicate that its research in and with Ukraine concerns types and quantities of biological agents justified for “prophylactic, protective, or other peaceful purposes.” Furthermore, the U.S.-Ukrainian cooperative research as described seems clearly to fall within Article X of the Convention.

As already noted, it is worth emphasizing that Russia has not publicly offered evidence supporting its allegations of U.S. and Ukrainian weaponization of biological agents. In contrast, the United States and Ukraine have offered documentation corroborating their account of lawful biological research.

In Part 2, I will examine the Convention’s dispute resolution mechanisms and how and to what effect Russia used those mechanisms in this case.

***

Robert Lawless is an Assistant Professor in the Department of Law and Managing Director of the Lieber Institute for Law & Land Warfare at the United States Military Academy, West Point.

 

Photo credit: J.N. Eskra

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