United States exports of biological materials to Iraq: Compromising the credibility of international law

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United States exports of biological materials to Iraq: Compromising the credibility of international law

Geoffrey Holland

University of Sussex

June 2005

United States exports of biological materials to Iraq:

Compromising the credibility of international law
This paper argues that the United States breached the Biological and Toxin Weapons Convention (BTWC) by supplying warfare-related biological materials to Iraq during the 1980s, at a time when that nation was at war with its neighbour, Iran. It is further argued that the United Kingdom has an obligation, not least due to its published policy on the issue, to formally report this breach to the United Nations Security Council. The case is made that if the UK, as a State Party to the BTWC, will not report this matter, then the Convention is not the legally binding international instrument it is claimed to be, thus compromising the credibility of international law. It may come as some surprise to the reader to learn – and as far as the author is aware this information has not previously been made public – that the anthrax threat from Iraq, a repeatedly cited reason for the 2003 invasion of that country, actually originated from a dead cow in South Oxfordshire.
In the study of law within International Relations, one of the first questions posed is: “Is international law really law?”[1] Based on the content of this paper, the answer would have to be a resounding “no”. The reason for this answer will be clarified in the following pages, which provide evidence of the export from the US to Iraq of the very biological materials that were later claimed – due to Iraq’s possession of them – to be the reason for the invasion of Iraq by the US and Britain in 2003.

Louis Henkin’s vague statement: “Almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time”[2] may well be the fuzzy trend in a range of less vital matters, but insofar as the subject of this paper is concerned – and as a result of which, war and large scale loss of life have resulted – international law appears as a sham. It is described in academic literature as “a body of rules which binds states and other agents in world politics in their relations with one another”,[3] but if international law is really law, then where are its teeth, and if it has no teeth, then what is its point?

The subject of this paper hinges on a particular international treaty – the Biological and Toxin Weapons Convention – held to be a principal international and legally binding instrument, a highly dubious claim, based on the evidence gathered here. According to Article 38 of the Statute of the International Court of Justice, treaties are a main source of international law,[4] so it seems reasonable to contend that if a treaty is simply disregarded by the States which are party to it, then a main source of international law is discredited and, thus, the credibility of international law is very seriously compromised indeed.

The paper will first examine the wording of the BTWC before providing evidence in support of the twin arguments that not only has the Convention been breached by the US, but that the UK has an obligation to formally report that breach to the UN Security Council. The focus will then narrow specifically to anthrax, including revealing the historical origin of this particular threat – fear of which was repeatedly cited by the British Government as a primary reason for joining the US-led invasion.

The Biological and Toxin Weapons Convention
Properly entitled The Convention on the Prohibition of the Development, Production, and

Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction,

the BTWC was signed by Britain and the US on 10 April 1972 and ratified by both

nations on 26 March 1975 – the day the Convention came into force.[5] The Treaty has

been described as the first to ban an entire class of weapons, prohibiting, as it claims to

do, the development, production, stockpiling and acquisition of biological weapons, and

supplementing the prohibition on their use as contained in the 1925 Geneva Protocol.[6]

So far so good – at least the promise is there – but it is here argued that Article III

of the BTWC has been breached by the US and that under Article VI of the

Convention, Britain, having knowledge of that breach, should formally report the matter

to the UN Security Council. Not only does this seem an obvious moral responsibility, but

it corresponds with published UK policy. However, the British Government has refused

to adhere to its own policy when it comes to reining in its ally the United States, and the “intimate connection between the effectiveness of international law in international society and the functioning of the balance of power”[7] seems to mean, in fact, that international law is wholly ineffective when faced with US power as its adversary.

Rather than examining the whole document, we are here concerned with just three

of the BTWC’s fifteen Articles – Articles I, III and VI, reproduced as follows:

  • Article I: Each State Party to this Convention undertakes never in any circumstances to develop, produce, stockpile or otherwise acquire or retain:
    (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;
    (2) Weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict.

  • Article III: Each State Party to this Convention undertakes not to transfer to any recipient whatsoever, directly or indirectly, and not in any way to assist, encourage, or induce any State, group of States or international organizations to manufacture or otherwise acquire any of the agents, toxins, weapons, equipment or means of delivery specified in article I of this Convention.

  • Article VI: (1) Any State Party to this convention which finds that any other State Party is acting in breach of obligations deriving from the provisions of the Convention may lodge a complaint with the Security Council of the United Nations. Such a complaint should include all possible evidence confirming its validity, as well as a request for its consideration by the Security Council.
    (2) Each State Party to this Convention undertakes to cooperate in carrying out any investigation which the Security Council may initiate, in accordance with the provisions of the Charter of the United Nations, on the basis of the complaint received by the Council. The Security Council shall inform the States Parties to the Convention of the results of the investigation.

Article III is quite clear: there are to be no transfers and no state, or any other entity, is to

be assisted in the manufacture or acquisition of biological weapons by any State Party to

the Convention. That a range of biological materials was transferred to Iraq from the

United States is certain – we shall come to the evidence of that in a moment – but Article

III first directs us back to the specification in Article I in order to determine the relevance

of those transfers under the terms of the Convention. According to Part (1) of Article I

there are three factors to consider, namely:

  1. Types of material.

  2. Quantities.

  3. Justification for prophylactic, protective or other peaceful purposes.

Regarding the first of these, there can be no doubt that the types of materials exported to

Iraq are of the greatest possible concern, as they comprise some of the most deadly materials on earth. One batch of anthrax alone makes this point, as shall be shown.

Regarding the second factor, in the case of biological materials such as anthrax quantities are irrelevant, so long as the material may be replicated from the amount supplied – however small or large that amount may be. Just to confirm this, Dr Desmond

Turner MP, a biochemist, has stated that “the biological materials exported from the

US to Iraq were quite sufficient to fuel a biological weapons programme, as a starter culture can be scaled up to any quantity”.[8]

So, having dispensed with (i) and (ii), we are left with factor (iii), which should be the only remaining factor to be dealt with prior to the issuance of a formal complaint to the UN Security Council regarding the subject US exports.

It could, of course, be said that there is potential justification for any substance whatsoever to be exported to any country whatsoever, for the purposes of research. However, if this is the argument in defence of the US exports – and there would seem to be no other – then what is the point of Article III in the first place? Should we conclude, thirty years after the BTWC came into force, that the Article was inserted into the document by its drafters for no reason, and that there would never be grounds for invoking it? It is certainly hard to envision any circumstances more extreme than those which have just taken place in Iraq, and the loss of life and global disruption that have occurred on account, as was alleged, of Iraq’s possession of weapons of mass destruction, and in particular anthrax. It is here contended that if these extreme circumstances are not of sufficient import to at least warrant investigation, then none could ever be, and in that case the Convention is meaningless and should not be regarded as law at all.

The unequivocal evidence of the Riegle Report
‘The Riegle Report’ details the findings of US Senate hearings chaired by Senator Donald Riegle in 1994 – hearings which were set up to investigate ‘Gulf War Syndrome’,

a term coined by Senator Riegle to describe the mystery illnesses of US military Veterans following the first Gulf War in 1991. Among its many other findings, the Report provides precise invoicing details, including eleven addresses in Iraq to which warfare-related biological materials were sent by the American Type Culture Collection (ATCC) between February 1985 and November 1989.[9] Anthrax, which will be the prime example used for illustration in this paper, was supplied in May 1986 and September 1988, ostensibly to the Ministry of Higher Education and the Ministry of Trade.

Figure 1

Extract from the Riegle Report showing that Iraq’s anthrax was shipped from the United States.

Date: May 2, 1986

Sent to: Ministry of Higher Education. Materials Shipped:
Bacillus Anthracis Cohn (ATCC 10)
Batch # 08-20-82 (2 each)
Class III pathogen.

Bacillus Subtitles (Ehrenberg) Con (ATCC 82)

Batch # 06-20-84 (2 each)

Clostridium botulinum Type A (ATCC 3502)

Batch# 07-07-81 (3 each)
Class III Pathogen

Clostridium perfringens (Weillon and Zuber)

Hauduroy, et al (ATCC 3624)
Batch# 10-85SV (2 each)

Bacillus subtilis (ATCC 6051)

Batch# 12-06-84 (2 each)

Francisella tularensis var. tularensis Olsufiev

(ATCC 6223)
Batch# 05-14-79 (2 each)
Avirulent; suitable for preparations of

diagnostic antigens.

Clostridium tetani (ATCC 9441)
Batch 03-94 (3 each)
Highly toxigenic.
Clostridium botulinum Type E (ATCC

9564) Batch# 03-02-79 (2 each)

Class III pathogen

Clostridium tetani (ATCC 10779)

Batch# 04-24-84S (3 each)

Clostridium perfringens (ATCC 12916)

Batch# 08-14-80 (2 each)
Agglutinating Type 2.

Clostridium perfringens (ATCC 13124)

Batch# 08-14-80 (3 each)
Type A, alpha-toxigenic, produces

lecithinase C.J. Appl,

Bacillus Anthracis (ATCC 14185)

Batch# 01-14-80 (3 each) G.G. Wright (Fort Detrick) V770-NPI-R.

Bovine anthrax, Class III pathogen
Bacillus Anthracis (ATCC 14578)
Batch# 01-06-78 (2 each)
Class III pathogen.

Bacillus megaterium (ATCC 14581)

Batch# 04-18-85 (2 each)

Bacillus megaterium (ATCC 14945)

Batch# 06-21-81 (2 each)
Clostridium botulinum Type E (ATCC 17855)
Batch# 06-21-71
Class III pathogen.

Bacillus megaterium (ATCC 19213)

Batch# 3-84 (2 each)

Clostridium botulinum Type A (ATCC 19397)

Batch# 08-18-81 (2 each)
Class III pathogen

Brucella abortus Biotype 3 (ATCC 23450)

Batch# 08-02-84 (3 each)
Class III pathogen

Brucella abortus Biotype 9 (ATCC 23455)

Batch# 02-05-68 (3 each)
Class III pathogen

Brucella melitensis Biotype I (ATCC 23456)

Batch# 03-08-78 (2 each)
Class III pathogen

Brucella melitensis Biotype 3 (ATCC 23458)

Batch# 01-29-68 (2 each)
Class III pathogen

Clostridium botulinum Type A (ATCC 25763)

Batch# 8-83 (2 each)
Class III pathogen

Clostridium botulinum Type F (ATCC 35415)

Batch# 02-02-84 (2 each)
Class III pathogen

The list in Figure 1 is merely one extract from the invoice details supplied to Senator

Riegle by the ATCC. One item is particularly notable in this list, for it is the strain of anthrax which will be shown to be the exclusive strain of anthrax used in the Iraqi biological weapons programme. Before focusing on anthrax, however, consider the range of materials exported to Iraq. The Riegle Report confirms that from 1985:

“Pathogenic (meaning ‘disease producing’), toxigenic (meaning ‘poisonous’), and other biological research materials were exported to Iraq pursuant to application and licensing by the U.S. Department of Commerce….These exported biological materials were not attenuated or weakened and were capable of reproduction. According to the Department of Defense's own Report to Congress on the Conduct of the Persian Gulf War, released in April 1992: "By the time of the invasion of Kuwait, Iraq had developed biological weapons. It's advanced and aggressive biological warfare program was the most advanced in the Arab world... The program probably began late in the 1970s and concentrated on the development of two agents, botulinum toxin and anthrax bacteria... Large-scale production of these agents began in 1989 at four facilities near Baghdad. Delivery means for biological agents ranged from simple aerial bombs and artillery rockets to surface-to-surface missiles."”[10]
The Report finds that among the US exports to Iraq were the following, and it notes their associated disease symptoms:[11]

  • Bacillus Anthracis: anthrax is a disease producing bacteria identified by the Department of Defense in The Conduct of the Persian Gulf War: Final Report to Congress, as being a major component in the Iraqi biological warfare program. Anthrax is an often-fatal infectious disease due to ingestion of spores. It begins abruptly with high fever, difficulty in breathing, and chest pain. The disease eventually results in septicemia (blood poisoning), and the mortality is high. Once septicemia is advanced, antibiotic therapy may prove useless, probably because the exotoxins remain, despite the death of the bacteria.

  • Clostridium Botulinum: a bacterial source of botulinum toxin, which causes vomiting, constipation, thirst, general weakness, headache, fever, dizziness, double vision, dilation of the pupils and paralysis of the muscles involving swallowing. It is often fatal.

  • Histoplasma Capsulatum: causes a disease superficially resembling tuberculosis that may cause pneumonia, enlargement of the liver and spleen, anemia, an influenza-like illness and an acute inflammatory skin disease marked by tender red nodules, usually on the shins. Reactivated infection usually involves the lungs, the brain, spinal membranes, heart, peritoneum, and the adrenals.

  • Brucella Melitensis: a bacteria which can cause chronic fatigue, loss of appetite, profuse sweating when at rest, pain in joints and muscles, insomnia, nausea, and damage to major organs.

  • Clostridium Perfringens: highly toxic bacteria, which cause gas gangrene. The bacteria produce toxins that move along muscle bundles in the body killing cells and producing necrotic tissue that is then favorable for further growth of the bacteria itself. Eventually, these toxins and bacteria enter the bloodstream and cause a systemic illness.

Figure 1 provides details of a single shipment sent on 2 May 1986. Note the emboldened entry for Bacillus anthracis (ATCC 14578), which the Iraq Survey Group has since determined was the exclusive strain of anthrax used in the Iraqi biological weapons programme.[12] This, then, is the source of the anthrax threat which was repeatedly promoted both inside Parliament and through the news media to the British People, prior to the decision being made for Britain to take part in the invasion of Iraq.

UK policy and the avoidance of responsibility
According to a House of Commons Library Research Service paper, produced by the

International Affairs and Defence Section in May 2003, one reason for the British

Government’s failure to respond to calls to report these US exports to the UN Security

Council is that under the terms of the BTWC (article VI) a State Party “may” lodge a complaint with the Security Council if another State Party is in breach, but is under no “obligation” to do so.[13]

However, in its Biological Weapons Green Paper of April 2002 – presented to Parliament by command of Her Majesty the Queen – the Government confirmed that under UK Policy, the Biological and Toxin Weapons Convention is a “principal international and legally binding instrument” and “those at every level responsible for any breach of international law will be held personally accountable”.[14] It is here argued, therefore, that the “will” in this UK policy necessarily turns the “may” of the Convention’s Article VI into a “will”.

During the last two sessions of Parliament, 162 of Britain’s 655 sitting MPs shared this view and signed two House of Commons Motions to the effect,[15] – a fact which, strangely, has been entirely overlooked by the mainstream news media. The matter has also been raised in the House of Lords, where on 15 March 2004, after reading the first of these Motions (EDM 300), the Bishop of Oxford asked the Government:

“Whether, in accordance with the Biological and Toxin Weapons Convention, they will report to the Security Council of the United Nations the reported sale of biological weapons to Iraq by the United States.”[16]

In response, Foreign Office Minister Baroness Symons replied as follows:
“My Lords, no. The materials were exported by the United States in accordance with export controls in place at the time. The United States did not believe that they would be used for anything other than legitimate research purposes and therefore did not knowingly export the materials to assist a biological weapons programme. There are therefore no grounds for reporting a breach of the Biological and Toxin Weapons Convention.”[17]
Thus, the Government acknowledges that the materials were sent to Iraq from the United States and that a breach of the Convention would be reported if there were grounds for doing so, but it avoids the responsibility by providing two inadequate reasons for not doing so. Consider the two parts of the Minister’s answer:
1. “The materials were exported by the United States in accordance with export controls in place at the time”
The implication here is that some form of US export controls were in place, but a report prepared in 1994 by the United States General Accounting Office (GAO) – the audit, evaluation and investigative arm of Congress – for the Chairman of the Foreign Affairs

Committee shows this to be false:

“Because Iraq was removed from antiterrorism controls and because controls on missile technology and chemical and biological warfare were not in place until the late 1980s, few foreign policy controls were placed on exports to Iraq during the 1980s…this, along with the lack of national security controls, resulted in a long list of high technology items being sold to Iraq during the 1980s.”[18]
Just to be clear on this, the United States’ own General Accounting Office says that controls “were not in place”. The House of Commons Library Research Service also quotes this same GAO document, saying that US policy “was not constrained by export controls until the late 1980s – early 1990s”.[19]
2. “The United States did not believe that they would be used for anything other than legitimate research purposes and therefore did not knowingly export the materials to assist a biological weapons programme”
It is all very well for the Government to make this claim but it is now known that the materials were licensed for export by the US Department of Commerce at a time when

the United States secretly supported Iraq in its eight-year war with Iran, and that in

February 1982 the US Administration removed Iraq from its list of ‘terrorist states’ in order to do so.[20] Furthermore, there is the astonishing fact that, among the various agencies of the Government of Iraq listed in the Riegle Report, one repeated recipient of these deadly materials was no less than the Iraqi nuclear weapons research facility, the Iraq Atomic Energy Commission.[21] So, on what grounds is this UK Government assertion made, and how can the conclusion possibly be reached that between 1985 and 1989 anthrax and other warfare-related biological materials were exported from the US to Iraq for “legitimate research purposes”? The claim sounds highly implausible and under the terms of the BTWC the only entity charged with conducting an investigation into its veracity is the UN Security Council.
Some historical facts [22]
The extent of US knowledge during the 1980s is revealed in a 1997 CIA report:
“CIA’s support for US military forces in the Gulf war began long before Iraq invaded Kuwait. CIA carefully monitored Iraqi military developments throughout the 1980s and wrote hundreds of reports for US political and military leaders on the threat Iraq posed to its neighbours, Iraq’s relations with terrorists and insurgents, and Iraq’s acquisition of weapons and military technology. Much of CIA’s basic research and reporting from before the invasion proved vital to US military forces deploying to the Gulf….CIA provided the US military copies of published CIA research papers on Iraq. Some of the topics included: The status and capabilities of Iraq’s ballistic missile forces and its chemical, biological, and nuclear weapons programs.”[23]
As noted, the CIA “carefully monitored Iraqi military developments throughout the 1980s and wrote hundreds of reports for US political and military leaders”, and its reports included: “The status and capabilities of Iraq’s…biological …weapons programs”. This explains why, when countering Iraq’s 1990 invasion of Kuwait, both the US and the UK were sufficiently well-informed that they prepared their troops for biological attack, as described in another GAO report of April 2001:
“Both the United Kingdom and United States considered biological warfare a threat during the Gulf War…..both the United States and United Kingdom regarded anthrax and botulinum toxin as potential threats…..the United States and United Kingdom made widespread use of vaccines specific to particular biological agents that they believed Iraq might have employed…..the US inoculated certain troops with a vaccine for botulinum toxin….both the US and UK made extensive use of drugs and vaccines. Both took medical countermeasures (i. e., drugs and vaccines) against exposures to biological and chemical warfare agents…”[24]
Similarly, according to the 1994 Riegle Report:
“The United States military planned for the use of chemical and biological weapons by Iraq by: discussing the chemical/biological threat in pre-war threat assessments; designating chemical/biological production facilities priority bombing targets; conferring with the U.S. national laboratories about the hazards associated with the bombings of the chemical, biological and nuclear weapons facilities; made preparations for the expected use of chemical/biological weapons by Iraq, including: acquiring German-made FOX NBC detection surveillance vehicles shortly before the war; administering anthrax vaccines, an experimental botulinum toxin vaccine, and pyridostigmine bromide as a nerve agent pretreatment pill.”[25]
It seems perfectly clear that those at the highest level in the US were aware of the Iraqi biological weapons programme. By January 1988, reports of Iraqi germ warfare capabilities were appearing in the US press, including in Jane’s Defense Weekly,[26] America’s leading independent provider of intelligence and analysis on national and international defence. “Everybody knows”, a US Government official was quoted as saying, “the Iraqis are trying to develop biological weapons”.[27]

In March 1989, Secretary of State James Baker had received a memo from the State

Department, informing him that Iraq “is working hard at chemical and biological weapons”,[28] and by then the statement concerning chemical weapons was rather old news – a US Department of State memorandum to the Secretary of State, dating from five years earlier, entitled “Iraq Use of Chemical Weapons”, opens with the words: “We have recently received additional information confirming Iraqi use of chemical weapons”.[29] The memorandum refers to Iraq’s “almost daily” use of chemical weapons and states that the issue will be on the agenda of a National Security Council meeting at the White House that same week.

The House of Commons Library Research Service corroborates the fact:

“Indications that chemical weapons were being used in the conflict between Iran and Iraq began to emerge during late 1983 after a number of Iranian casualties suffering from severe burns and lung damage were evacuated to Western Europe for treatment…..In March 1984 the UN Secretary-General sent a team of specialists to investigate Iranian claims in an attempt to secure an impartial and objective opinion. The team, in a unanimous verdict, reported that chemical weapons had indeed been used against Iranian troops.”[30]
This hardly sounds like a regime to which the export of deadly warfare-related biological agents should have been approved, yet the United States Department of Commerce did so time and time again. Why? There are numerous press references that indicate a motive: The US was actively supporting Iraq in its war with Iran. Take, for example, a December 1986 article by Bob Woodward in the Washington Post:
“The Central Intelligence Agency has been secretly supplying Iraq with detailed intelligence, including data from sensitive U.S. satellite reconnaissance photography, to assist Iraqi bombing raids on Iran's oil terminals and power plants in the war between the two nations, according to informed sources. The information has been flowing to Iraq for nearly two years.”[31]
In case there is any doubt that direct involvement in the arming and support of Saddam

Hussein extended to the very highest level in the United States, in a sworn declaration in 1995 to the US District Court, Southern District of Florida, former US National Security

Council Advisor (1982-1987) Howard Teicher, who accompanied President Reagan’s

Middle East envoy Donald Rumsfeld to Baghdad in 1983, stated:

“While a Staff Member to the National Security Council, I was responsible for the Middle East and for Political-Military Affairs. During my five year tenure on the National Security Council, I had regular contact with both CIA Director William Casey and Deputy Director Robert Gates…CIA Director Casey personally spearheaded the effort to ensure that Iraq had sufficient military weapons, ammunition and vehicles to avoid losing the Iran-Iraq war. Pursuant to the secret NSDD (National Security Decision Directive), the United States actively supported the Iraqi war effort by supplying the Iraqis with billions of dollars of credits, by providing U.S. military intelligence and advice to the Iraqis, and by closely monitoring third country arms sales to Iraq to make sure that Iraq had the military weaponry required. The United States also provided strategic operational advice to the Iraqis to better use their assets in combat. For example, in 1986, President Reagan sent a secret message to Saddam Hussein telling him that Iraq should step up its air war and bombing of Iran. This message was delivered by Vice President Bush who communicated it to Egyptian President Mubarak, who in turn passed the message to Saddam Hussein. Similar strategic operational military advice was passed to Saddam Hussein through various meetings with European and Middle Eastern heads of state. I authored Bush’s talking points for the 1986 meeting with Mubarak and personally attended numerous meetings with European and Middle East heads of state where the strategic operational advice was communicated.”[32]
The conflation of culture collection strain samples and “weapons”
Over a period of several weeks, this writer has corresponded with some of the world’s leading authorities on arms control and anthrax. These include Milton Leitenberg, Senior Research Scholar at the University of Maryland and Professor Emeritus Martin Hugh-Jones, of the School of Veterinary Medicine, Louisiana State University. The reason for the specific focus on anthrax is due to the fact that on 30 September 2004, when the findings of the Iraq Survey Group were published, it was revealed that the exclusive strain of anthrax used in the Iraqi biological weapons programme was ATCC strain 14578 – the anthrax strain shipped to Iraq by the American Type Culture Collection on 2 May 1986.[33] To quote the Iraq Survey Group Report: “Iraq declared researching different strains of B. anthracis, but settled on the American Type Culture Collection (ATCC) strain 14578 as the exclusive strain for use as a BW”.[34] Being as the threat we were told we faced from Iraq (at one point within 45 minutes) was, according to the British Government, principally the threat of anthrax, it follows that this specific strain – the exclusive strain used – constituted that very threat.

Having already read an earlier report published by this writer, Milton Leitenberg

responded to an enquiry by e-mail thus:
“That there were no specific US BW export controls in place at the time – which your report notes, does not as you there claim, turn it into a violation. Your report also conflates culture collection strain samples and “weapons” on several occasions, as I recall. I will grant you two things: given that there was a war on, and that Iraq had used CW, and that one of the locations Iraq listed as a recipient was its Atomic Energy Commission, it would have been wiser to send them nothing.”[35]
Mr Leitenberg is an acknowledged expert on this subject and, of course, he is quite correct in noting that the absence of specific US BW export controls does not mean that the action by the ATCC constituted a violation. No, it was the absence of US BW export controls that was the fault, and the US Administration must, therefore, bear the blame for permitting the exports. Otherwise, what is the point of signing up to and ratifying what is held to be an international legally binding instrument? Either it is legally binding on states or it is not. It obviously cannot be both, and if it is not legally binding it can hardly be regarded as law.

As far as conflating culture collection strain samples and “weapons” is concerned, conflation certainly seems justifiable in respect of anthrax strain ATCC 14578, for this strain has a substantial military pedigree which is well known to the US Government, as will shortly be detailed. Indeed, its military potential is so well documented that anyone with any sense would never have allowed it to be sent to Iraq. If we assume that the US Government has any sense – which, presumably, the Administration itself would argue – then by logical extension the suspicion arises that the decision to allow it was a conscious decision. And if not, then at the very least it was a case of gross negligence.

In his 2004 book The Problem of Biological Weapons, Milton Leitenberg examines the question of offensive/defensive distinctions in biological weapons-related research, noting, among other comparative examples, that the use of pathogenic or toxic strains is an indication of a biological weapons facility, whereas the use of non-pathogenic or non-toxic strains is an indication of a legitimate facility (ie: one engaged in research for ‘peaceful’ purposes).[36] Another comparison made is between military/state funded activities, which he suggests are indicative of a BW facility, as against private/corporate funded activities, which suggest a legitimate facility. These examples are cited because the biological materials exported to Iraq from the United States included pathogenic or toxic strains, and these were sent by ATCC to agencies of the government of Iraq.[37]

Mr Leitenberg inserts a useful schema in his book, which he notes was presented in testimony to the US Congress in 1989 by Colonel David Huxsoll, a former director of the US Army Medical Research Institute of Infectious Diseases (USAMRIID),[38] and which is reproduced here as figure 2. This he suggests is a schematic representation of a paragraph in a 1969 National Security Study Memorandum – ie: some years before the subject materials were exported. It is considered relevant to the case made herein because it shows where the separation comes between what may be considered offensive (ie: prohibited by the BTWC) and defensive (ie: permitted by the BTWC). Note that attenuated (or weakened) materials are in the permitted category, whereas more virulent materials are in the prohibited category.

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