Related Rule
United States of America
Practice Relating to Rule 73. Biological Weapons
The US Field Manual (1956) states:
The reservation of the United States [to the 1925 Geneva Gas Protocol] does not, however, reserve the right to retaliate with bacteriological methods of warfare against a state if that state or any of its allies fails to respect the prohibitions of the Protocol. The prohibition concerning bacteriological methods of warfare which the United States has accepted under the Protocol, therefore, proscribes not only the initial but also any retaliatory use of bacteriological methods of warfare. In this connection, the United States considers bacteriological methods of warfare to include not only biological weapons but also toxins, which, although not living organisms and therefore susceptible of being characterized as chemical agents, are generally produced from biological agents. All toxins, however, regardless of the manner of production, are regarded by the United States as bacteriological methods of warfare within the meaning of the proscription of the Geneva Protocol of 1925. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 38(d).
The US Air Force Pamphlet (1976) states:
International law prohibits biological weapons or methods of warfare whether they are directed against persons, animals or plants. The wholly indiscriminate and uncontrollable nature of biological weapons has resulted in the condemnation of biological weapons by the international community, and the practice of states in refraining from their use in warfare has confirmed this rule. The Biological Weapons Convention prohibits also the development, preparation, stockpiling and supply to others of such weapons. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 6-4(b).
The US Air Force Commander’s Handbook (1980) states: “The United States has renounced the use of bacteriological weapons under all circumstances, and their possession is forbidden by a 1972 Treaty.” 
United States, Air Force Pamphlet 110-34, Commander’s Handbook on the Law of Armed Conflict, Judge Advocate General, US Department of the Air Force, 25 July 1980, § 6-3(b).
The US Operational Law Handbook (1993) states: “The US has renounced … all use of biological weapons.” 
United States, Operational Law Handbook, JA 422, Center for Law and Military Operations and International Law Division, The Judge Advocate General’s School, United States Army, Charlottesville, Virginia 22903-1781, 1993, p. Q-182, § (i).
The US Naval Handbook (1995) states:
The United States considers the prohibition against the use of biological weapons during armed conflict to be part of customary international law and thereby binding on all nations whether or not they are parties to the 1925 [Geneva] Gas Protocol or the 1972 Biological Weapons Convention.
The United States has, therefore, formally renounced the use of biological weapons under any circumstance. Pursuant to its treaty obligations, the United States has destroyed all its biological and toxin weapons and restricts its research activities to development of defensive capabilities. 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 10.4.2.
The US Naval Handbook (2007) states:
10.4 Biological Weapons
International law prohibits all biological weapons or methods of warfare whether directed against persons, animals, or plant life. Biological weapons include microbial or other biological agents or toxins whatever their origin (i.e., natural or artificial) or methods of production.
10.4.1 Treaty Obligations
… The United States … [is a party] to both the 1925 [Geneva] Gas Protocol and the 1972 Biological Weapons Convention.
10.4.2 U.S. Policy Regarding Biological Weapons
The United States considers the prohibition against the use of biological weapons during armed conflict to be part of customary international law and thereby binding on all nations whether or not they are parties to the 1925 [Geneva] Gas Protocol or the 1972 Biological Weapons Convention.
The United States has, therefore, formally renounced the use of biological weapons under any circumstance. Pursuant to its treaty obligations, the United States has destroyed all its biological and toxin weapons and restricts its research activities to development of defensive capabilities. 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, §§ 10.4, 10.4.1 and 10.4.2.
The US Manual for Military Commissions (2010), Part IV, Crimes and Elements, includes in the list of crimes triable by military commissions:
EMPLOYING POISON OR SIMILAR WEAPONS.
a. Text. “Any person subject to this chapter who intentionally, as a method of warfare, employs a substance or weapon that releases a substance that causes death or serious and lasting damage to health in the ordinary course of events, through its asphyxiating, bacteriological, or toxic properties, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.”
b. Elements.
(1) The accused intentionally employed a substance or a weapon that releases a substance as a result of its employment;
(2) The substance was such that causes death or serious damage to health in the ordinary course of events through its asphyxiating, poisonous, bacteriological properties;
(3) The accused employed the substance or weapon with the intent of utilizing such asphyxiating, poisonous, bacteriological properties as a method of warfare;
(4) The accused knew or should have known of the nature of the substance or weapon employed; and
(5) The conduct took place in the context of and was associated with hostilities.
c. Comment.
(1) The “death or serious damage to health” required of the offense must be a direct result of the substance’s effect or effects on the human body (e.g., asphyxiation caused by the depletion of atmospheric oxygen secondary to a chemical or other reaction would not give rise to this offense).
(2) The clause “serious damage to health” does not include temporary incapacitation or sensory irritation.
(3) The use of the “substance or weapon” at issue must be proscribed under the law of armed conflict. It may include chemical or biological agents.
(4) The specific intent element for this offense precludes liability for mere knowledge of potential collateral consequences (e.g., mere knowledge of a secondary asphyxiating or toxic effect would be insufficient to complete the offense).
d. Maximum punishment. Death, if the death of any person occurs as a result of the employment of the substance or weapon. Otherwise, confinement for life. 
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, § 5(8), pp. IV-7 and IV-8.
In Executive Order 12735 issued in 1990, the US President stated: “The proliferation of … biological weapons constitutes an unusual and extraordinary threat to the national security and foreign policy of the United States.” The order also provided for the possibility of imposing sanctions against foreign persons and governments found to have “knowingly and materially” contributed to efforts to “use, develop, produce, stockpile or otherwise acquire … biological weapons”. 
United States, Executive Order 12735, Chemical and Biological Weapons Proliferation, 16 November 1990, preamble and Section 4(b)(1), Federal Register, Vol. 55, 1990, p. 48587.
The US Biological Weapons Anti-Terrorism Act (1989) criminalizes “whoever knowingly develops, produces, stockpiles, transfers, acquires, retains, or possesses any biological agent, toxin or delivery system for use as a weapon or knowingly assists a foreign State or any organization to do so”. 
United States, Biological Weapons Anti-Terrorism Act, 1989, § 175.
The US Military Commissions Act (2009) amends Chapter 47A of Title 10 of the United States Code as follows:
§ 950t. Crimes triable by military commission
“The following offenses shall be triable by military commission under this chapter at any time without limitation:
“ …
“(8) EMPLOYING POISON OR SIMILAR WEAPONS.—Any person subject to this chapter who intentionally, as a method of warfare, employs a substance or weapon that releases a substance that causes death or serious and lasting damage to health in the ordinary course of events, through its asphyxiating, bacteriological, or toxic properties, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct. 
United States, Military Commissions Act, 2009, § 950t(8).
At the Conference for the Supervision of the International Trade in Arms and Ammunition and in Implements of War in 1925, the United States, with regard to a Polish proposal to extend the prohibition contained in what became the 1925 Geneva Gas Protocol to bacteriological warfare (see supra), stated:
Bacteriological warfare is so revolting and so foul that it must meet with the condemnation of all civilized nations, and hence my delegation … accepts this amendment proposed by the Polish delegate. 
United States, Statement made on 8 June 1925 at the Conference for the Supervision of the International Trade in Arms and Ammunition and in Implements of War, Geneva, 4 May–17 June 1925, League of Nations, Records of the Conference, Doc. A.13.1925.IX, September 1925, p. 341.
On 25 November 1969, the US President formally renounced the use of biological agents as weapons. On the same day, the US Secretary of State stated in a memo to the National Security Council that biological research and development would be limited to “defensive” activities and that research into “offensive” aspects of biological agents would only be permitted to the extent that it was pursued for “defensive” reasons. 
Alfred Mechtersheimer, “US military strategy and chemical and biological weapons”, in Erhard Geissler (ed.), Biological and Toxin Weapons Today, SIPRI, Oxford University Press, Oxford, 1986, p. 79.
On 14 February 1970, the US President stated: “The United States renounces offensive preparations for and the use of toxins as a method of warfare.” The reason given for the decision on toxins by the Office of the White House Press Secretary was that their production in any significant quantities “would require facilities similar to those needed for the production of biological agents. If the United States continued to operate such facilities, it would be difficult for others to know whether they were being used to produce only toxins but not biological agents.” 
Erhard Geissler, “Introduction”, in Erhard Geissler (ed.), Biological and Toxin Weapons Today, SIPRI, Oxford University Press, Oxford, 1986, p. 18.
At the CDDH, the United States voted against the Philippine amendment (see supra) because:
Grave breaches were meant to be the most serious type of crime; Parties had an obligation to punish or extradite those guilty of them. Such crimes should therefore be clearly specified, so that a soldier would know if he was about to commit an illegal act for which he could be punished. The amendment, however, was vague and imprecise … It would also punish those who used the weapons, namely, the soldiers, rather than those who made the decision as to their use, namely, Governments. 
United States, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.44, 30 May 1977, pp. 280–281, § 7.
In the preliminary stages of the First Review Conference of States Parties to the Biological Weapons Convention in 1980, the United States stated:
Article I
The United States is in full compliance with the obligations contained in article I. Facilities previously used for development, production or stockpiling of biological weapons were now devoted to peaceful purposes …
Article IV
The US has taken, and is taking, a number of steps to prohibit and prevent activities contrary to the provisions of the Convention:
1.… all heads of federal departments and agencies certified to the President at his request, that their organizations were in compliance.
2.Detailed regulations have been established to ensure that the small remaining quantities of biological and toxin agents are used only for peaceful purposes.
3.Existing legislation already controls certain private actions concerning items prohibited under article I, including provisions of the Arms Export Control Act, the Export Administration Act, the Transportation of Dangerous Articles Act, and the regulations issued pursuant to these laws. 
United States, Response to the request by the Preparatory Committee for the First Review Conference of States Parties to the Biological Weapons Convention, Geneva, 3–21 March 1980, excerpted in UN Doc. BWC/CONF.I/4, 20 February 1980, § 53, Articles I and IV.
In 1982, at the CSCE review meeting in Madrid, the US delegation directly accused the USSR of “seriously and deliberately” violating both the 1972 Biological Weapons Convention and the 1925 Geneva Gas Protocol. The Soviet delegation rejected the charges as “monstrous accusations, false from beginning to end” and denied that the USSR had ever used chemical weapons “anywhere under any circumstances or by any means”. 
Julian Perry Robinson, “Chemical and biological warfare: developments in 1982”, SIPRI Yearbook 1983: World Armaments and Disarmament, Taylor & Francis, London, 1983, p. 393.
In 1991, in a diplomatic note to Iraq concerning operations in the Gulf War, the United States stated that it “expects the Government of Iraq to respect its obligations under the Geneva [Gas] Protocol of 1925 not to use … biological weapons”. 
United States, Department of State, Diplomatic Note to Iraq, Washington, 19 January 1991, annexed to Letter dated 21 January 1991 to the President of the UN Security Council, UN Doc. S/22122, 21 January 1991, Annex I, p. 2.
In 1993, during a debate in the First Committee of the UN General Assembly, the United States stated that it had worked for the elimination of bacteriological weapons. 
United States, Statement before the First Committee of the UN General Assembly, UN Doc. A/C.1/48/SR.5, 19 October 1993, p. 10.
At the Fourth Review Conference of States Parties to the Biological Weapons Convention in 1996, the United States stated that it had “unilaterally renounced all use of biological and toxin weapons and destroyed its offensive stockpile before the Convention’s effective date in 1975”. In its concluding statement, the United States stressed that it was important that biological weapons were “not just renounced, but banished from the face of the earth”. 
United States, Statement of 26 November 1996 at the Fourth Review Conference of States Parties to the Biological Weapons Convention, Geneva, 25 November–6 December 1996.
In 1997, Cuba alleged that a US State Department aircraft, apparently on an approved flight to Grand Cayman Island, had dispensed Thrips Palmi insecticide over Cuba, which caused significant crop damage. 
Cuba, Information about the appearance in Cuba of the Thrips Palmi plague, annexed to Note verbale dated 28 April 1997 to the UN Secretary-General, UN Doc. A/52/128, 29 April 1997; see also Anthony Goodman, “Cuba accuses US of ‘biological aggression’“, Reuter, New York, 5 May 1997.
The US Department of State categorically denied “the outrageous charges made by the Cuban Government” and noted that it had “not engaged in any act which would be in violation” of the 1972 Biological Weapons Convention and that it had “unilaterally destroyed all stockpiled biological agents prior to entry into force of the Convention”. 
United States, Department of State, Office of the Spokesman, Press Statement by Acting Spokesman, “Cuba: No Use of Biological Weapons”, 6 May 1997.
At the Fifth Review Conference of States Parties to the Biological Weapons Convention in 2001, the United States accused a number of countries of not complying with their obligations under the 1972 Biological Weapons Convention. It named the Democratic People’s Republic of Korea, the Libyan Arab Jamahiriya, the Islamic Republic of Iran, Iraq, the Syrian Arab Republic and the Sudan as violating the Convention and specified: “This list is not meant to be exhaustive.” 
United States, Statement of 19 November 2001 at the Fifth Review Conference of States Parties to the Biological Weapons Convention, Geneva, 19 November–7 December 2001.
In a written statement, the US President declared:
All civilized nations reject as intolerable the use of disease and biological weapons as instruments of war and terror … The vast majority of nations has banned all biological weapons in accordance with the 1972 Biological and Toxins Weapons Convention (BWC) … The United States unilaterally destroyed its biological weapons stockpiles and dismantled or converted to peaceful uses the facilities that had been used for developing and producing them. 
United States, Written statement dated 1 November 2001 by the US President submitted to the Fifth Review Conference of States Parties to the Biological Weapons Convention, Geneva, 19 November–7 December 2001.
In May 2010 the US President issued the 2010 National Security Strategy, which stated:
Counter Biological Threats: The effective dissemination of a lethal biological agent within a population center would endanger the lives of hundreds of thousands of people and have unprecedented economic, societal, and political consequences. We must continue to work at home with first responders and health officials to reduce the risk associated with unintentional or deliberate outbreaks of infectious disease and to strengthen our resilience across the spectrum of high-consequence biological threats. We will work with domestic and international partners to protect against biological threats by promoting global health security and reinforcing norms of safe and responsible conduct; obtaining timely and accurate insight on current and emerging risks; taking reasonable steps to reduce the potential for exploitation; expanding our capability to prevent, attribute, and apprehend those who carry out attacks; communicating effectively with all stakeholders; and helping to transform the international dialogue on biological threats.  
United States, Report by the President, “2010 National Security Strategy”, The White House, Washington DC, 26 May 2010, p. 24.