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Disarmament Diplomacy

Issue No. 68, December 2002 - January 2003

BWC Report

Waiting for Godot or Saving The Show? The BWC Review Conference Reaches Modest Agreement

By Marie Isabelle Chevrier

Introduction

The Fifth Review Conference of the Biological and Toxin Weapons Convention (BWC) resumed in Geneva on November 11, 2002, after a year-long cooling off period.1 As reported in Disarmament Diplomacy, the first instalment of the Conference ended in what was described as "an eventful and acrimonious fashion"2: proceedings were suspended on the last day (December 7) in reaction to a proposal by the United States to terminate the mandate of the Ad Hoc Group (AHG) established in 1994 to strengthen the effectiveness and improve the implementation of the BWC through a legally-binding instrument.

In September 2002, the United States once again shocked its allies by proposing that the originally scheduled two week resumption of the Review Conference (November 11-22) be concluded in a half day or one day, with only one decision to be taken - to hold another Review Conference in 2006. This proposal was made at a private meeting of the Western Group countries in Geneva and was greeted with widespread displeasure. Between September and November 2002, Foreign Ministry personnel of many Western Group countries were said to have communicated their dissatisfaction with the US proposal to Washington. Simultaneously, Ambassador Tibor Tóth of Hungary, the President of the Review Conference, developed a draft proposal after consultations with many governments. Tóth tabled his proposal - in the form of a draft decision - at the opening plenary meeting of the resumed Review Conference. Thus the stage was set. The mise en scene, however, was not a document to be discussed, debated, revised and negotiated; rather, it was a new ultimatum. The United States was widely reported to have insisted that no changes whatsoever be made to the draft decision; not a word, not a comma, nothing. And thus it was. After a tense week of meetings - some postponed, others cancelled - a unanimous decision was taken by the conference late on Thursday afternoon of the first week (November 14) to accept the draft decision as tabled by Ambassador Tóth on Monday morning.

As will be detailed below, the decision mandates a one-week meeting of states parties in each of the three years (2003-2005) leading up to the next Review Conference. The agenda of these meetings, which are to be supported by the work of expert meetings, has been set, and does not include consideration of a possible resumption of protocol negotiations. The task of the 2006 Review Conference is also defined as reviewing the outcome of this new, tightly prescribed consultative process. Options for a broader review - potentially including a reconsideration of the protocol issue - are not, however, ruled out.

The positive spin on the Review Conference is that the three weeks of yearly meetings have substantive, procedural and symbolic value. Substantively, the meetings constitute a forum where significant progress may be made on the issues under discussion. The mandate for the AHG, albeit moribund, stays on the books, perhaps to be resurrected at a later date. The procedural value of the meetings is in keeping lines of communication open among states parties to the BWC. Finally, symbolically, the vast majority of the states parties could claim success in standing against the US demand last year to specifically terminate the AHG and to the US proposal in September to have no meetings of the states parties until the 2006 Review Conference.

The negative spin is that the states parties are now mired in a diplomatic staging of Waiting for Godot. Delegations meet, spend money, argue semantics and report back to capitals, justifying continued talk while the spectre of biological warfare and bioterrorism hover in the background with ever growing menace. Typically, each version contains some truth.

This article describes the decision taken at the Conference and the process that led to its unanimous adoption. It also looks at the official statements of the Western Group and the Group of Non-Aligned Movement (NAM) and Other States and their different understandings of the decision. The article further looks at the non-governmental activities at the Conference and elsewhere and discusses the prospects for success in the new framework of meetings.

The Decision

The Conference decided to hold one week of meetings at the political level each year between 2003 and the next (Sixth) Review Conference in 2006, with each meeting to be preceded by two weeks of expert level meetings. The meetings will be limited to specific topics each year and any decisions will be taken by consensus. The expert meetings will prepare reports and the Sixth Review Conference will consider the work of the meetings and decide on any further action.

In 2003 the meetings will be devoted to national measures. First, the participants will address "the adoption of necessary national measures to implement the prohibitions set forth in the Convention, including the enactment of penal legislation."3 Emphasis is added to the word 'prohibitions', because Iran was said to have objected to the term, arguing instead for the broader term provisions. By retaining 'prohibitions', the states parties will focus discussion on national measures to implement Article I, and possibly III, of the Convention, avoiding the contentious discussion of what states have done, for example, to implement Article X. (See discussion below.) Second, the participants will examine "national mechanisms to establish and maintain the security and oversight of pathogenic microorganisms and toxins."4

In 2004 the discussions will move beyond national measures to discuss two international issues: first, "enhancing international capabilities for responding to, investigating and mitigating the effects of cases of alleged use of biological or toxin weapons or suspicious outbreaks of disease" and; second, "strengthening and broadening national and international institutional efforts and existing mechanisms for the surveillance, detection, diagnosis and combating of infectious diseases affecting humans, animals, and plants."5

In the final year of meetings the discussion will turn to the role and responsibility of the scientific community, looking at " the content, promulgation, and adoption of codes of conduct for scientists."6

This work programme closely resembles the proposals set forth in the United States' opening statement at the onset of the Fifth Review Conference in 2001. Indeed, the topics for the 2003-2005 yearly meetings are a subset of the proposals US Undersecretary of State for Arms Control, John Bolton, made at the time.

The Process

The opening plenary session was closed without discussion of Ambassador Tóth's proposal. Rather than allowing debate to take place in an open forum such as the Plenary meeting, Tóth urged delegates to discuss the draft with their capitals, in private regional group meetings and with other delegates. A General Committee meeting originally scheduled for the following afternoon (Tuesday, November 12) was postponed several times.

The Group of the Non-Aligned Movement and Other States met promptly on Monday afternoon under the leadership of Peter Goosen of South Africa and repeatedly over the next few days. Reports from diplomats attending the meetings described a great deal of dissension within the Group. A shifting group of countries - including, at one time or another, Mexico, Cuba, Iran, India and Pakistan - was, at least initially, opposed to accepting Tóth's draft proposal as written. Other, so-called moderate NAM countries urged acceptance of the proposal although with no particular enthusiasm for its contents. Predictably, these members of the Group placed a high value on annual meetings within the BWC framework, preserving the multilateralism inherent in such a setting. The tense mood in Geneva was aptly described by Ambassador Rakesh Sood of India, who noted simply, "everyone in the conference is walking on eggshells."

Tension was not limited to disagreements among the NAM and Other States Group. Publicly, members of the Western Group remained solidly behind Tóth's proposal. In private, however, several delegates admitted that they would have liked to see modifications to the proposal but that the United States was unwilling to consider any changes. Moreover, some Western Group delegates worried that the United States would make good on a veiled, if not explicit, threat to walk out of the Conference if the meetings dragged on. Ultimately, the primary motivation leading to the consensus conclusion was an unwillingness on the part of any delegation to shoulder the blame for the Conference ending without a consensus document or any follow-up.

Once the members of the NAM and Other States Group came to the conclusion that they would accept the draft decision by Tóth, another issue arose. Some states wanted to issue formal statements that would be entered into the official conference record. UK Ambassador Patrick Lamb, for one, was said to be adamantly opposed to statements from individual states, perhaps for fear of opening wounds barely - or only superficially - healed from last year.

Meanwhile, Ambassador Tóth was struggling to avoid a repeat of last December's débâcle. A Wednesday morning meeting at his invitation was cancelled; instead, the Japanese Ambassador, Kuniko Inoguchi, hosted a lunch at the Japanese Mission. An agreement was reportedly hammered out over the meal that two statements - one from the Western Group, one from the NAM and Other States - would be acceptable to all parties.

The NAM and Other States Group and the Western Group met on Thursday to finalise their Group statements. Late Thursday afternoon, the plenary meeting originally scheduled for Tuesday took place. After a consensus agreement on the proposal introduced on Monday, the two Groups read their statements. A careful examination of the two statements reveals the deep divisions among the delegations regarding the future work of the states parties.

The NAM and Western Group Statements

The statement by the members of the NAM and Other States opened with an expression of deep disappointment "at the inability...to successfully undertake initiatives to strengthen the implementation of the Convention."7 The statement also expressed disappointment in the decision of the Review Conference and described the work programme for 2003-2005 as "limited" and "at best has only the potential of enhancing the implementation of the Convention." The repetition of the implementation language is a reference to the mandate of the AHG whose goal was for a legally binding instrument to "strengthen the effectiveness and improve the implementation of the Convention." The exclusion of the clause "strengthen the effectiveness" appears to be deliberate. In contrast, the statement from the Western Group, while carefully avoiding the exact language of the AHG mandate, states that the decision "establishes a framework...to enhance and strengthen effective implementation of the BWC."8

The NAM and Other States went on to assert that they and "other like-minded states parties" have succeeded in preventing any attempt to foreclose the option of more meaningful work in the future." Reading between the lines, this appears to be an oblique reference to the inability of the United States to impose its will on the Conference to explicitly terminate the mandate of the AHG as it proposed at the close of the aborted Review Conference in 2002. A second indirect reference to the United States contends that this same group of NAM, Other and like-minded states have "succeeded in preserving multilateralism as the only vehicle for preventing the reprehensible use of disease as instruments of terror and war in a sustainable way."9 The United States has stated that it will pursue other means to address the biological weapons threat.10 Moreover, this phrase in the Group's statement is an allusion to the Australia Group (AG), the informal group of states that coordinate their export policies to avoid contributing to chemical and biological weapons (CBW) proliferation.11 Some members of the NAM and Other States Group have long expressed their opposition to the Australia Group. Nevertheless, the Western Group in its statement also stressed the importance of an "ongoing multilateral process".12

After referring to comments made at the Ministerial Meeting of the Co-Ordinating Bureau of the Non-Aligned Movement, the statement of the NAM and Other States went on to clarify the Group's interpretation of the decision taken at the Review Conference. Admitting candidly that the states concerned "have gone along with" the decision, the statement makes plain that this approval is tied to a number of key understandings. In at least one instance, the interpretation of the NAM and Other States is in stark contrast to the understanding of the Western Group: while the former understands that the "language of the decision has many ambiguities", the latter states that "the decision...is clear and self-explanatory."13 Another explicit understanding of the NAM and Others is that the yearly meetings are intended to function for an "extremely limited" time, and that the states parties "will in 2006...decide on further action." The final understanding in the statement might best be described as a warning that the Group (or some of its members) will not be satisfied, and perhaps will withhold agreement on, partial measures to improve the implementation of the BWC. This understanding reads: "The BWC forms a composite whole and that while it is possible to address related issues separately, it will be necessary for all of the interlinked elements of the Convention - whether they relate to regulation, compliance or promotion - to be dealt with." Here the Group recognises that the work programme outlined in the decision does not contain topics of importance to many members of the Group, notably, though not solely, topics related to Article X of the Convention.14

Adoption by the Fifth Review Conference of this final document by consensus tends to obscure the fact of its profound dissimilarity to final declarations adopted at previous Review Conferences.15 Nine weeks of meetings among the states parties before the Preparatory Committee (PrepCom) for the Sixth Review Conference, with no explicit change in the official status of the Ad Hoc Group, is indeed a feat that many did not believe possible earlier in the year. Nevertheless, abandonment of the substantial segments of the Draft Final Declaration already agreed last year by states parties is perhaps an under-appreciated loss. As reported last year in Disarmament Diplomacy, the delegations had agreed on final language for a number of sections of the Draft Final Declaration.16 Although serious disagreements remained on many other sections, important agreements arrived at last year were not included in this year's Final Document. Nevertheless, progress obtained in last year's meetings as well as remaining disagreements are likely to resurface in the yearly meetings.

Prospects for Progress

When the meetings commence in 2003, both progress and disagreements in the group discussing national legislation - facilitated during last year's session of the Review Conference by Mexico's Ambassador, Gustavo Albin - will likely play a role. If states conduct adequate preparation for the meetings, and if a significant number are able to report on national legislation adopted and implemented, the implementation of Article IV could see improvement by the time of the meetings. The language of national legislation must be drafted carefully, however, to make sure it contains all of the prohibitions contained in Article I of the Convention. Similarly, last year's discussions, facilitated by Germany's Volker Beck, came close to agreement on issues of safety, including the protection, handling and transfer of dangerous agents and toxins. The meetings next year should be able to build on this work.

After discussions facilitated by Iran's Ambassador, Ali Ahsgar Soltanieh, consensus was achieved last year on language regarding disease surveillance.17 It seems likely that the consensus achieved last year will be used as the basis of discussions in 2004. Thus, last year's agreement on specific measures, as well as a mechanism to coordinate the work of several international organisations whose work pertains to disease, will not be lost. Nevertheless, a two-year delay on plans to implement the agreement on disease surveillance is regrettable.

Participants in the meetings in 2004 on the international investigation of alleged use of biological weapons or suspicious disease outbreaks will have their work cut out for them. Last year the committee on investigations was considering three different approaches advocated by the European Union (EU), the US and Iran. Potentially a very valuable mechanism, achievements in 2003 could pave the way for compromises and progress in 2004.

The meetings in 2005, focussed on codes of conduct for scientists, seem relatively simple and straightforward compared to the topics in 2003 and 2004. Last year the subject of codes of conduct was addressed by the same group as national legislation. The language in the Draft Final Declaration stressed the importance of codes of conduct, suggesting: "Such codes could include, inter alia, a statement that scientists will use their knowledge and skills for the advancement of human welfare and will not conduct any activities directed toward use of microorganisms or toxins or other biological agents for hostile purposes or in armed conflict." The 2005 meetings could build on this beginning and provide considerable more detail to make the code maximally effective.

A number of important topics taken up last year in committees are omitted from the work programme, most notably work on Confidence-Building Measures (CBMs), the use of biological and toxin weapons (BTW), and consultations and cooperation. Ambassador Hubert de la Fortelle of France garnered broad agreement on a proposal regarding CBMs last year. Participation in the politically binding CBMs have been disappointing in the past18 and an agreement on expanding and emphasising the importance of CBMs, particularly in the absence of legally binding measures, is a significant loss. Similarly, review of assistance to states in the event of BTW use with Ambassador Chris Westdal of Canada as facilitator was close to agreement when the Conference was adjourned last December.

The Final Declaration of every previous Review Conference has contained language regarding the use of biological agents and toxins. Every Final Declaration included language expressing the determination of states parties "to exclude completely the possibility of the use of bacteriological (biological) agents and toxins as weapons."19 The Final Declaration of the Fourth Review Conference (1996) was the most detailed yet in its emphasis on the prohibition of the use of biological agents or toxins as weapons. In several separate sections of the Final Declaration, the states parties reiterated their opposition to the use of BTW.

Regarding Article I for instance, the Final Declaration stated: "The Conference reaffirms the undertaking in Article I never in any circumstances to develop, produce, stockpile or otherwise acquire or retain weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict, in order to exclude completely and forever the possibility of their use."20 The Final Document of the Fifth Review Conference is silent on this matter.

Finally, at the adjournment of last year's portion of the Review Conference facilitator Frederico Duqueu Estrada Meyer of Brazil proposed a forum for consultation and discussion of Article X issues. In the absence of any language regarding consultation cooperation in the Final Document, this issue will not receive any formal attention until the next Review Conference.

NGO Activities

A number of important non-governmental organisation (NGO) activities complemented the work of the delegations at the resumption of the Fifth Review Conference. On the opening day of the Conference, a group of eight NGOs launched the BioWeapons Prevention Project (BWPP), a new civil society initiative to monitor the ban on biological weapons. According to the NGOs: "The BioWeapons Prevention Project is dedicated to reinforcing the norm against the weaponisation of disease. It is a global civil society activity that tracks governmental and other behaviour under the treaties that codify the norm. It nurtures and is empowered by an international network, and acts both through that network and its publications."21 The event was opened by Jayantha Dhanapala, UN Under-Secretary-General for Disarmament Affairs, to a standing-room only crowd at the Palais des Nations. Ambassador Dhanapala headed a panel of speakers including Judge Dumisa Ntsebeza, former Chief Investigator of the Truth and Reconciliation Commission in South Africa; Angela Woodward, from the Verification Research, Training and Information Centre (VERTIC) in London; and the author, representing the Federation of American Scientists (FAS) Working Group on Biological Weapons. Chandré Gould of the Centre for Conflict Resolution (CCR) in South Africa chaired the event. The organisations sponsoring the BWPP are: the British American Security Information Centre (BASIC), CCR, FAS, the Geneva Forum, the Harvard Sussex Programme (HSP), the Network of Engineers and Scientists for Global Responsibility (INES), the Department of Peace Studies at the University of Bradford (UK), and VERTIC.

As Ambassador Dhanapala stated in his address: "The lack of a mechanism to monitor the implementation of the BWC provisions other than the possibility to review the Convention at five-year intervals, is a lacuna that today more than ever must be addressed. The launching of the BioWeapons Prevention Project could make a significant contribution towards that end since, achieving the objectives of the BWC - the prohibition of the development, production and stockpiling of bacteriological (biological) weapons and their elimination - cannot be done solely by the actions of Governments, as indispensably it requires the committed participation of civil society." Following the presentations, Annika Thunborg, First Secretary of the Swedish Mission to the Conference on Disarmament (CD), announced that her government would contribute financial support to the BWPP and she urged other countries to do likewise.

The Department of Peace Studies continued its contributions to the BW disarmament process in a presentation on Tuesday, November 12 featuring the Department's latest Review Conference Papers.22 The International Committee of the Red Cross (ICRC), accorded Observer status at the Review Conference, held a third NGO seminar on Wednesday, November 13, during which it presented its international appeal, "Biotechnology, Weapons and Humanity."23 In the Appeal, launched on September 25, the ICRC urges "all political and military authorities to strengthen their commitment to the international humanitarian law norms which prohibit the hostile uses of biological agents and to work together to subject potentially dangerous biotechnology to effective controls", and likewise presses "the scientific and medical communities, industry and civil society in general to ensure that potentially dangerous biological knowledge and agents be subject to effective controls."

The involvement of NGOs in the Fifth Review Conference, both in 2001 and 2002, was markedly greater than during previous Review Conferences. The involvement of the ICRC is particularly significant because of its global reach and reputation. It has to be said, however, that attention from these groups and their dedication to action stems in part from the demonstrable failure of the states parties to complete a legally-binding agreement to strengthen the effectiveness of the Convention.

Conclusion

Over the next three years, states parties will once again have the opportunity to strengthen the BWC in a meaningful way. The anger directed so directly towards the United States at the adjournment of the Conference last December may have dissipated, but it has not disappeared. As tempting as it may be for some delegations to focus their indignation on the only state party to reject the Draft Protocol to the BWC, such indulgence could act - and may, in some cases, even be designed to act - to forestall meaningful action in the meetings over the next three years in the build-up to the next Review Conference. In spite of the essential and complementary activities of NGOs in the biological and toxin weapons field, only governments have the power to enact legislation and draw up international agreements capable of succeeding in the world's efforts, as stated in the Preamble to the Convention, "to exclude completely the possibility of bacteriological (biological) agents and toxins being used as weapons."

States parties would do well to keep this goal continuously in the forefront of their deliberations and not let their differences about what cannot be achieved in the present political environment prevent them from attaining the possible, and moving towards the optimal. If states parties cannot come to agreement on significant multilateral actions - actions clearly indicated in the work programme decided at the Fifth Review Conference - the blame for letting the BWC wither on the vine will spread from the United States to many other countries. Facing threats from states which may be in violation of the BWC, or which are not party to it, as well as potentially hideous risk of attack from bioterrorists, the stakes have never been higher.

Notes and References

1. For documentation on the resumed session of the Fifth BWC Review Conference, and extensive background information, please see the United Nations, http://disarmament.un.org/wmd/bwc/fifth, and the Acronym Institute for Disarmament Diplomacy. For the full text of the Final Document of the Fifth Review Conference, see the United Nations, http://disarmament.un.org/wmd/bwc/pdf/bwccnfv17.PDF.

2. Jenni Rissanen, "Left in Limbo: Review Conference Suspended On Edge of Collapse" Disarmament Diplomacy No. 62 (January/February 2002), pp. 18-45. Available on the web at: http://www.acronym.org.uk/dd/dd62/62bwc.htm.

3. BWC/CONF.V/17. Final Document, Fifth Review Conference of the States Parties to the Convention on the Prohibition of the Development, Production, and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, (Geneva, 19 November-7 December 2001 and 11-22 November 2002). P. 3. Emphasis added.

4. Ibid.

5. Ibid. pp. 3-4.

6. Ibid.

7. "Statement on Behalf of the Group of the Non-Aligned Movement and Other States" BWC/CONF.V/15. Resumed Session, Geneva, 11-22 November 2002. P. 2. Hereafter "Statement of the Group of the NAM and Other States."

8. "Statement on Behalf of the Western Group" BWC/CONF.V/16. Resumed Session, Geneva, 11-22 November 2002. Pg. 2. Hereafter "Statement of the Western Group."

9. Statement of the Group of the NAM and Other States. Emphasis added.

10. Statement of the Honorable John R. Bolton, Undersecretary of State for Arms Control and International Security, United States Department of State to the Fifth Review Conference of the Biological Weapons Convention, Geneva Switzerland, November 19, 2001. Available on the 'Washington File' section of the US Department of State website: http://usinfo.state.gov.

11. On its website - http://www.australiagroup.net - the Australia Group states: "The principal objective of participants in the Australia Group is thus to ensure, through licensing measures on the export of certain chemicals, biological agents, and dual-use chemical and biological manufacturing facilities and equipment, that exports of these items from their countries do not contribute to the spread of CBW." The Group has 32 members: Argentina, Australia, Austria, Belgium, Bulgaria, Canada, Czech Republic, Cyprus, Denmark, European Commission, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Republic of Korea, Luxembourg, Netherlands, Norway, Portugal, Romania, Slovakia, Spain, Sweden, Switzerland, Turkey, United Kingdom, United States.

12. "Statement of the Western Group."

13. Ibid, p. 2.

14. Article X of the BWC obligates state parties to "undertake to facilitate and have the right to participate in, the fullest possible exchange of equipment, materials and scientific and technological information for the use of bacteriological (biological) agents and toxins for peaceful purposes" and to "avoid hampering the economic or technological development of states parties...or international co-operation in the field of peaceful exchange of...activities...agents and toxins for peaceful purposes".

15. For the full text of Final Declarations at previous Review Conferences, see the University of Bradford website at: http://www.bradford.ac.uk/acad/sBWC/.

16. Jenni Rissanen, "Left In Limbo: Review Conference Suspended On Edge of Collapse", Disarmament Diplomacy No. 62 (January/February 2002), pp. 18-45. The Appendix to Rissanen's report, pp. 33-45, contains the full text of the Draft Final Declaration.

17. Ibid, p. 27.

18. Marie Isabelle Chevrier and Iris Hunger, "Confidence-Building Measures for the BTWC: Performance and Potential", Nonproliferation Review 7 (Fall-Winter 2000), pp. 24-42.

19. See University of Bradford website, supra note 15.

20. "Part II: Final Declaration", Final Declaration. Fourth Review Conference Of The Parties To The Convention On The Prohibition Of The Development, Production And Stockpiling Of Bacteriological (Biological) And Toxin Weapons And On Their Destruction. BWC/CONF.IV/9 (Geneva, November 25-December 6, 1996). Available from the United Nations at: http://www.unog.ch/disarm/review/bintro.htm.

21. See the website of the BioWeapons Prevention Project: http://www.bwpp.org. For the text of Ambassador Dhanapala's statement, see http://disarmament.un.org/speech/11nov2002.htm.

22. Review Conference Paper No. 9: 'The Resumed BTWC Review Conference: Maximising the Benefits from the Final Declaration', by Graham S. Pearson and Nicholas Sims, October 2002 (presented by Graham S. Pearson); Review Conference Paper No. 8: 'Return to Geneva: Uncertainties and Options', by Graham S. Pearson and Nicholas Sims, October 2002 (presented by Nicholas Sims). Full text of the papers can be found at the University of Bradford website: http://www.brad.ac.uk/acad/sBWC . A more detailed description of the presentation can be found in Graham S. Pearson, "Report from Geneva - Friday 16 November 2002", also available on the University of Bradford website. See also on the website an updated 'Report from Geneva' by Graham S. Pearson, November 22, reflecting on the outcome of the resumed Review Conference.

23. The full text of the appeal can be found on the ICRC website: http://www.icrc.org. See also 'Red Cross Launches Biotechnology Appeal', Disarmament Diplomacy No. 67 (October/November 2002), pp. 58-59.

Dr. Marie Chevrier is Associate Professor in the Department of Social Sciences at the University of Texas at Dallas. She is a member of the Federation of American Scientists' (FAS) Working Group on Biological Weapons.

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