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Investigating Allegations of Chemical or Biological Warfare: The Canadian Contribution
Published online by Cambridge University Press: 27 February 2017
Extract
The 1925 Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare unequivocally makes the use of chemical and biological weapons an illegitimate means of waging war. Yet enforcement of the Protocol is hindered by the lack of an investigative mechanism to provide prompt and effective verification of an alleged violation. In response to controversy stemming from this omission, in 1982 the General Assembly requested that the Secretary-General enlist the assistance of experts to investigate alleged breaches of the Protocol and relevant rules of customary international law, devise procedures for timely and efficient investigation, and document information relating to the identification of chemical and biological warfare agents. In 1984 the Secretary-General submitted his Report on Chemical and Bacteriological (Biological) Weapons to the General Assembly, which included the provisional procedures recommended by the Group of Consultant Experts. Deeply concerned about the use of such weapons, and perceiving a need for more extensive guidance on the subject, the Canadian Government prepared the Handbook for the Investigation of Allegations of the Use of Chemical or Biological Weapons and presented it to the Secretary-General on December 4, 1985.
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References
1 June 17, 1925, 94 LNTS 65, 26 UST 571, TIAS No. 8061.
2 The General Assembly has endorsed the 1925 Geneva Protocol on numerous occasions. See, e.g., GA Res. 40/92C (Dec. 12, 1985). Despite the prohibition, the use of chemical and biological weapons has been alleged or proven on several occasions. For instance, in 1983 Iran accused Iraq of using chemical weapons, and an independent investigating team dispatched by the Secretary-General found evidence that mustard and nerve gas had been used. UN Doc. S/16433 (1984). More recently, a team of experts concluded that Iraq had indeed used chemical weapons against Iran. UN Doc. S/17911 and Add.1 (1986). See also infra note 3.
3 Intense controversy between Western nations and the Soviet bloc arose after an impartial team of experts, appointed by the Secretary-General pursuant to General Assembly Resolution 35/144C of Dec. 12, 1980, investigated U.S. Government allegations that chemical weapons were used in Afghanistan and Southeast Asia. The experts found “circumstantial evidence suggestive of the possible use of some sort of toxic chemical substance in some instances.” UN Doc. A/37/259, at 50 (1982). See T. Franck, Nation Against Nation 248–51 (1985).
4 GA Res. 37/98D (Dec. 13, 1982). During committee deliberations, the Soviet Union and Argentina added an interesting twist to solving the verification problem by claiming that any verification regime would constitute amendment of the 1925 Geneva Protocol. They questioned the legality of amending an international instrument by a mere majority of states, including states that were not parties to the agreement. See UN Doc. A/C.1/37/PV.47, at 36, 46–50 (1982).
5 UN Doc. A/39/488, Ann. II (1984) [hereinafter the Report]. The General Assembly noted with satisfaction that with the submission of the Report, the implementation of Resolution 37/98D, supra note 4, was completed. GA Res. 39/65E (Dec. 12, 1984).
6 Canada has been concerned about the spread of chemical weapons since they were first used against Canadian troops during World War I. Telephone interview with Lt. Col. W. A. Morrison, Counsellor (Arms Control and Disarmament), Canadian Mission to the United Nations (Jan. 31, 1986). See Stockholm International Peace Research Institute, The Problem of Chemical and Biological Warfare: Vol. 1, The Rise of CB Weapons 29–31 (1971). The Canadian Government made a presentation to the Group of Consultant Experts to assist in preparation of the Report, supra note 5, and submitted the names of scientific experts and laboratories to the Secretary-General pursuant to General Assembly Resolution 37/98D, supra note 4.
7 The need for further guidance was indirectly identified by the authors of the Report in acknowledging their inability to produce a standard handbook of procedures for the expert teams. Report, supra note 5, para. 85. In addition, they invited governments and concerned organizations to direct the Secretary-General’s attention to any new information on technical aspects of procedures or documentation. Id., para. 91.
8 Canadian Delegation to the United Nations, Press Release No. 65, Dec. 4, 1985 (New York). The Handbook for the Investigation of Allegations of the Use of Chemical or Biological Weapons [hereinafter the Handbook], published in November 1985, is the culmination of a study conducted by scientists and governmental officials under the auspices of the Verification Research Programme of the Arms Control and Disarmament Division of the Department of External Affairs.
9 GA Res. 40/152 O (Dec. 16, 1985). Canada initiated the resolution, which is the first of its kind to have received unanimous support.
10 UN Doc. A/40/27 (1985). Negotiations resumed in Geneva on Feb. 4, 1986. N.Y. Times, Feb. 5, 1986, at A3, col. 1.
11 Art. IV, Ann. IV, sec. III, UN Doc. A/40/27 (1985).
12 Apr. 10, 1972. 26 UST 583, TIAS No. 8062, reprinted in 11 ILM 309 (1972).
13 GA Res. 39/65D (Dec. 12, 1984).
14 The Report directs the Secretary-General to select a neighboring country for the base camp if access to the site is not feasible. Report, supra note 5, para. 19. In case a government denies access, or is unable to guarantee the team’s security or logistical support, the Report suggests selecting experts to evaluate the available data and continuing to try to arrange for an on-site inspection. Id., para. 23.
15 Id., para. 70.
16 Id., paras. 13–16.
17 GA Res. 37/98D, supra note 4.
18 See infra text accompanying note 19.
19 This procedure might have averted the sabotage problem encountered by the expert team that investigated allegations of the use of “yellow rain” in Southeast Asia in 1980–1981. For a description of that incident, see T. Franck, supra note 3, at 249.