BIOLOGICAL AND TOXIN WEAPONS (PROHIBITION)

CHAPTER 24:06
BIOLOGICAL AND TOXIN WEAPONS (PROHIBITION)

ARRANGEMENT OF SECTIONS

SECTION

1. Short title

2. Interpretation

3. Application of Convention

4. Act binds the State

5. Prohibition of the use of biological or toxin weapons

6. Controlled agents and toxins

7. Official capacity or superior orders not a defence

8. Extra-territorial jurisdiction

9. Regulations

SCHEDULE

Act 27, 2018,
Act 10, 2022.

An Act to provide for the domestication of the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction of 10 April, 1972 in order to ensure that Botswana conforms to and implements her obligations under the Convention relating to the regulation of the use of biological or toxin weapons, and for matters incidental thereto.

[Date of Commencement: 29th June, 2018]

1. Short title

This Act may be cited as Biological and Toxin Weapons (Prohibition) Act.

2. Interpretation

In this Act, unless the context otherwise requires—

“Authority” means the Chemical, Biological, Nuclear and Radiological Weapons Management Authority established under section 5 of the Chemical Weapons (Prohibition) Act (Cap. 24:04);

“biological or toxin weapon” means—

(a) 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; or

(b) weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict;

“Board” means the Board established under section 7 of the Chemical Weapons (Prohibition) Act (Cap. 24:04);

“controlled agents and toxins” means such controlled agents and toxins which appear on the list established and maintained under section 6;

“Convention” means the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction signed on 10 April, 1972, as set out in the Schedule to this Act, and includes any amendments thereto; and

“proliferation financing” means the act of providing funds or financial services which are used, in whole or in part, for the manufacture, acquisition, possession, development, export, transhipment, brokering, transport, transfer, stockpiling or use of any biological or toxin weapon and its means of delivery and related materials, including both technologies and goods used for non-legitimate purposes.

3. Application of Convention

The Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, as set out in the Schedule to this Act and any amendments thereto, shall have force of law in Botswana.

4. Act binds the State

This Act binds the State.

5. Prohibition of the use of biological or toxin weapons

(1) A person who—

(a) intentionally releases biological agents or toxins;

(b) develops, produces, manufactures, otherwise acquires, stockpiles, stores, possesses, transports, imports, exports, tranships, acts as a broker for, or retains any biological or toxin weapon, or transfers, directly or indirectly, to anyone, any biological or toxin weapon;

(d) engages in preparations to use any biological or toxin weapon;

(e) constructs, acquires or retains any facility intended for the production of biological or toxin weapons;

(f) diverts any biological agent or toxin from peaceful uses to biological or toxin weapons;

(g) tampers with any facility, package or container containing any biological or toxin weapon in order to cause their release; or

(h) diverts or steals any biological or toxin weapon in order to cause their release,

commits an act of terrorism and is liable to a penalty specified in sections 3(2) of the Counter Terrorism Act.

[10 of 2022, s. 3]

(2) A person who finances any of the activities listed in subsection (1) commits an act of financing of terrorism and is liable to a penalty specified in section 5(1) of the Counter Terrorism Act.

[10 of 2022, s. 3]

(3) For the purposes of this section, “act of terrorism” has the same meaning assigned to it under the Counter Terrorism Act.

[10 of 2022, s. 3]

6. Controlled agents and toxins

(1) The Board shall establish and maintain a list of controlled agents and toxins that pose a severe threat to public health and safety and national security.

(2) The following criteria shall be taken into account in establishing and maintaining the list under subsection (1)—

(a) the effect of exposure on human, animal, or plant health, or on animal or plant products;

(b) the degree of contagiousness and method of transmission;

(d) any other criteria deemed appropriate, if any.

(3) A person shall not—

(a) develop, produce, acquire, manufacture, possess, store, stockpile, transport, import, export, tranship, transfer, act as a broker for, retain or use controlled agents and toxins without a licence, as may be prescribed;

(b) tamper with any facility, package or container containing controlled agents and toxins in order to cause their release; or

(4) Regulations made under subsection (3)(a) may provide for—

(a) the issue of the licence, including such fees which may be payable;

(b) the form of the licence;

(d) the conditions and duration of the licence.

(5) A person who contravenes the provisions of—

(a) subsection (3)(a) commits an offence and is liable to a fine of P1 000 000 or to a term of imprisonment of 20 years, or to both; and

(b) subsection (3)(b) or subsection (3)(c) commits an offence and is liable to a fine of P10 000 000 or to life imprisonment, or to both, where the act does not result in death, and where the act results in death is liable to the death penalty.

7. Official capacity or superior orders not a defence

It shall not be a defence to an offence under this Act for a person charged with the offence to plead that he or she acted in an official capacity or under the orders or instructions of his or her superior.

8. Extra-territorial jurisdiction

(1) A citizen of Botswana, or a person who permanently resides in Botswana, who commits an act outside Botswana that constitutes an offence under this Act if committed in Botswana, commits an offence and shall be liable to a penalty as prescribed under this Act.

(2) Any act prohibited under this Act undertaken outside Botswana by a citizen of Botswana shall be deemed to have been undertaken at any place within Botswana.

(3) A person may not be convicted of an offence under subsection (1) if such a person has been acquitted or convicted in the country where that offence was committed.

9. Regulations

(1) The Minister may make regulations prescribing anything under this Act which is to be prescribed or which is necessary or convenient to be prescribed for the better carrying out of the objects and purposes of this Act, or to give force and effect to its provision.

(2) Without prejudice to the generality of subsection (1), the regulations may provide for—

(a) the protection of the environment and the health and safety of persons from any risks associated with the activities referred to in this Act;

(b) measures to ensure the maintenance of national security and compliance with Botswana’s international obligations regarding the use of biological and toxin weapons; and

SCHEDULE

(Sections 2 and 3)

CONVENTION ON THE PROHIBITION OF THE DEVELOPMENT, PRODUCTION AND STOCKPILING OF BACTERIOLOGICAL (BIOLOGICAL) AND TOXIN WEAPONS AND ON THEIR DESTRUCTION

The States Parties to this Convention,

Determined to act with a view to achieving effective progress towards general and complete disarmament including the prohibition and elimination of all types of weapons of mass destruction, and convinced that the prohibition of the development, production and stockpiling of chemical and bacteriological (biological) weapons and their elimination, through effective measures, will facilitate the achievement of general and complete disarmament under strict and effective international control,

Recognising the important significance of the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, signed at Geneva on 17th June, 1925, and conscious also of the contribution which the said Protocol had already made, and continues to make, to mitigating the horrors of war,

Reaffirming their adherence to the principles and objectives of that Protocol and calling upon all States to comply strictly with them,

Recalling that the General Assembly of the United Nations has repeatedly condemned all actions contrary to the principles and objectives of the Geneva Protocol of 17th June 1925,

Desiring to contribute to the strengthening of confidence between peoples and the general improvement of the international atmosphere,

Desiring also to contribute to the realisation of the purposes and principles of the Charter of the United Nations,

Convinced of the importance and urgency of eliminating from the arsenals of States, through effective measures, such dangerous weapons of mass destruction as those using chemical or bacteriological (biological) agents,

Recognising that an agreement on the prohibition of bacteriological (biological) and toxin weapons represents a first possible step towards the achievement of agreement on effective measures also for the prohibition of the development, production and stockpiling of chemical weapons, and determined to continue negotiations to that end,

Determined, for the sake of all mankind, to exclude completely the possibility of bacteriological (biological) agents and toxins being used as weapons,

Convinced that such use would be repugnant to the conscience of mankind and that no effort should be spared to minimise this risk,

Have agreed 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) microbiological 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 II

Each State Party to this Convention undertakes to destroy, or to divert to peaceful purposes, as soon as possible but not later than nine months after the entry into force of the Convention all agents, toxins, weapons, equipment and means of delivery specified in Article I of the Convention, which are in its possession or under its jurisdiction or control. In implementing the provisions of this Article all necessary safety precautions shall be observed to protect populations and the environment.

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 organisations to manufacture or otherwise acquire any of the agents, toxins, weapons, equipment or means of delivery specified in Article I of the Convention.

ARTICLE IV

Each State Party to this Convention shall, in accordance with its constitutional processes, take any necessary measures to prohibit and prevent the development, production, stockpiling, acquisition or retention of the agents, toxins, weapons, equipment and means of delivery specified in Article I of the Convention, within the territory of such State, under its jurisdiction or under its control anywhere.

ARTICLE V

The States Parties to this Convention undertake to consult one another and to co-operate in solving any problems which may arise in relation to the objective of, or in the application of the provisions of, the Convention. Consultation and co-operation pursuant to this Article may also be undertaken through appropriate international procedures within the framework of the United Nations and in accordance with its Charter.

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 the Convention undertakes to co-operate 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 VII

Each State Party to this Convention undertakes to provide or support assistance, in accordance with the United Nations Charter, to any Party to the Convention which so requests, if the Security Council decides that such Party has been exposed to danger as a result of violation of the Convention.

ARTICLE VIII

Nothing in this Convention shall be interpreted as in any way limiting or detracting from the obligations assumed by any State under the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, signed at Geneva on 17th June, 1925.

ARTICLE IX

Each State Party to this Convention affirms the recognised objective of effective prohibition of chemical weapons and, to this end, undertakes to continue negotiations in good faith with a view to reaching early agreement on effective measures for the prohibition of their development, production and stockpiling and for their destruction, and on appropriate measures concerning equipment and means of delivery specifically designed for the production or use of chemical agents for weapons purposes.

ARTICLE X

(1) The States Parties to this Convention 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. Parties to the Convention in a position to do so shall also co-operate in contributing individually or together with other States or international organisations to the further development and application of scientific discoveries in the field of bacteriology (biology) for the prevention of disease, or for other peaceful purposes.

(2) This Convention shall be implemented in a manner designed to avoid hampering the economic or technological development of States Parties to the Convention or international co-operation in the field of peaceful bacteriological (biological) activities, including the international exchange of bacteriological (biological) agents and toxins and equipment for the processing, use or production of bacteriological (biological) agents and toxins for peaceful purposes in accordance with the provisions of the Convention.

ARTICLE XI

Any State Party may propose amendments to this Convention. Amendments shall enter into force for each State Party accepting the amendments upon their acceptance by a majority of the States Parties to the Convention and thereafter for each remaining State Party on the date of acceptance by it.

ARTICLE XII

Five years after the entry into force of this Convention, or earlier if it is requested by a majority of Parties to the Convention by submitting a proposal to this effect to the Depositary Governments, a conference of States Parties to the Convention shall be held at Geneva, Switzerland, to review the operation of the Convention, with a view to assuring that the purposes of the preamble and the provisions of the Convention, including the provisions concerning negotiations on chemical weapons, are being realised. Such review shall take into account any new scientific and technological developments relevant to the Convention.

ARTICLE XIII

(1) This Convention shall be of unlimited duration.

(2) Each State Party to this Convention shall in exercising its national sovereignty have the right to withdraw from the Convention if it decides that extraordinary events, related to the subject matter of the Convention, have jeopardised the supreme interests of its country. It shall give notice of such withdrawal to all other States Parties to the Convention and to the United Nations Security Council three months in advance. Such notice shall include a statement of the extraordinary events it regards as having jeopardised its supreme interests.

ARTICLE XIV

(1) This Convention shall be open to all States for signature. Any State which does not sign the Convention before its entry into force in accordance with paragraph 3 of this Article may accede to it at any time.

(2) This Convention shall be subject to ratification by signatory States. Instruments of ratification and instruments of accession shall be deposited with the Governments of the United Kingdom of Great Britain and Northern Ireland, the Union of Soviet Socialist Republics and the United States of America, which are hereby designated the Depositary Governments.

(3) This Convention shall enter into force after the deposit of instruments of ratification by twenty-two Governments, including the Governments designated as Depositaries of the Convention.

(4) For States whose instruments of ratification or accession are deposited subsequent to the entry into force of this Convention, it shall enter into force on the date of the deposit of their instruments of ratification or accession.

(5) The Depositary Governments shall promptly inform all signatory and acceding States of the date of each signature, the date of deposit of each instrument of ratification or of accession and the date of the entry into force of this Convention, and of the receipt of other notices.

(6) This Convention shall be registered by the Depositary Governments pursuant to Article 102 of the Charter of the United Nations.

ARTICLE XV

This Convention, the English, Russian, French, Spanish and Chinese texts of which are equally authentic, shall be deposited in the archives of the Depositary Governments. Duly certified copies of the Convention shall be transmitted by the Depositary Governments to the Governments of the signatory and acceding States.

IN WITNESS WHEREOF the undersigned, duly authorised thereto, have signed this Convention.

DONE in triplicate at the cities of London, Moscow and Washington, this tenth day of April, one thousand nine hundred and seventy-two.