Improving CBRN Forensics Can Stop War Crimes

Investigating criminal acts involving chemical, biological, radiological, and nuclear (CBRN) materials presents a number of unique challenges. A crime scene involving a CBRN attack could manifest itself in many forms: An actual incident with injuries and deaths; a clandestine production laboratory; or a vehicle or container used for moving or smuggling material. These are only some of the possibilities.

National or international ability to successfully investigate and prosecute criminal acts using CBRN substances, whether they used in terrorist acts, conventional criminal activity, or war crimes leaves much to be desired.  In many places around the world, the lack of consistent, competent, and legally defensible processes, procedures, personnel, and equipment means that war criminals and terrorists may escape justice due to lack of credible evidence. As recent incidents of reported CBRN attacks by the Assad regime and ISIS in Syria show us, there is a need for better capabilities and procedures in the collection and preservation of evidence in such cases.

Holding Up in Court

Across the world, legal proceedings in national and international courts rely on evidence.  In the case of CBRN incidents, physical evidence is extremely important and it can be assumed that skilled and aggressive defense counsel in trials and hearings will challenge any evidence presented. The chain of events that leads from turning up at the scene of the incident all the way to a conviction in a courtroom is fraught with pitfalls. Competent defense counsel will question the evidence and everything to do with the evidence.  Where was the sample collected? What was the procedure to determine where to collect samples?  What container was used to collect it?  Was it sterile?  Can this be proven?  What techniques were used?

A competent forensic technician knows how to answer these questions from a hostile attorney. But the hazmat technicians and military CBRN specialists who might be the ones collecting the evidence, as is the case in many places, may be competent in their jobs, but untrained for the court-room environment.  Challenging the evidence being presented is the nature of adversarial legal systems around the world.

It is indeed tragic that terrorists or war criminals may walk free simply because CBRN evidence was collected improperly or not collected at all.

In addition to legal proceedings, regardless of what happens in the courtroom, evidence will be challenged in public forums.  One only need to look at the recriminations, conspiracy theories, and related drama surrounding the August 2013 Sarin attacks in Ghouta, Syria to see the kind of morass that can develop.  Doubt, specious allegations, contradicting theories, and chaos will drip and leach into any real or perceived gap in the evidence or the process by which the evidence was collected and processed.

The problem is that the chain of events to take evidence from the point of use in an incident or investigation all the way through to the courtroom is deficient in most parts of the world.  In my decades of experience in CBRN matters, I have seen no end of substandard practices in this area, and many places in the world simply have zero capability to collect and process evidence from a CBRN crime scene.  I have seen in recent years in a NATO and EU member state a training exercise in which the remnants of a terrorist chemical device and the incriminating material it contained literally flushed down the sewer, without any attempt to examine it for evidence. No one (other than myself) raised objections to these actions.

Training First Responders

In today’s asymmetric battlefields where state and non-state actors mix, the issue of collecting and preserving evidence at the scene of a CBRN incident or war crime is problematic for many reasons.  The problem is caused by a number of conflicts in priorities and deficiencies in capabilities. The sphere of people with the ability to safely operate in a CBRN environment (or similar hazardous situations) does not intersect very much (or at all) with the sphere of people who are trained to think and operate forensically. In many countries, CBRN/Hazardous material incident responders are drawn largely from or entirely from the military and fire services, and the forensic technicians work with, under, or as part of the police services. The handful of people who have some sort of awareness in both fields are scarce.

They do exist, however. Some come from a background in the enforcement of environmental and pollution regulations and laws. Experts in clandestine drug laboratory response are a useful repository of expertise as well, but are rarely tasked with CBRN terrorism as a mission. Many countries simply cannot answer the question, “Who is going to collect the evidence?”  In many places, the answer is, in effect, “Nobody knows.” Therefore evidence will go uncollected and efforts at prosecution may be unsupported by physical evidence.

The problem extends from the crime scene back to the laboratory and the morgue. Laboratories most used to dealing with traditional forensic crime scene evidence may be ill-prepared to deal with dangerous CBRN materials.  Likewise, the traditional CBRN laboratories may not have the ability to process and exploit conventional crime scene evidence, like a dead body, a mobile phone, or a scrap of paper contaminated with CBRN material.  Post-mortem examination is also an important capability gap. The issue of what to do with a dead body that may be contaminated is important on several levels, and has not been seriously addressed in many places.  A post-mortem exam may be revelatory and dead bodies could yield crucial evidence, particularly in situations where the causative agent is unclear and the material may degrade or disappear before an standard forensic response can capture it.

The issue of time and speed causes several other conflicts. The transitory nature of the evidence can be a complicating factor.  Gasses dissipate, vapors disperse, liquids evaporate, short-lived isotopes decay, and microbes die.  There is a fundamental conflict between the need to react quickly to seize evidence before it degrades or disappears and the need to approach a crime scene in a thorough and methodical way. Speed is important. However, competent crime scene procedures are slow and methodical. Evidence needs to be collected in an appropriate way that are both procedurally and administratively safeguarded against tampering, cross-contamination, or accidental degradation. Trained and experienced technicians can do the best they can to strike a balance between speed and thoroughness, but this is a fundamental conflict that confronts every CBRN crime scene.

Time interacts with safety to pose another conflict. The health and safety of forensic technicians is a serious concern. Forensic technicians are generally unaccustomed to the type and extent of protective clothing and equipment required to lurk about for a period of time in a CBRN crime scene. The exposure of civilian and military medical response personnel to the Ebola virus illustrates how difficult avoiding exposure is, even among trained, cautious personnel. Wearing and operating in protective clothing slows all people down, is a burden on human physical and mental endurance, and acts to shorten the period of time that people can spend in a contaminated environment.  The act of operating in protective posture complicates the time problem and makes it even more likely that evidence will degrade before somebody can do something useful with it. Crime scenes can have other hazards besides the obvious CBRN exposure.  Incidents in an ongoing theater of operations can present conventional security problems in open warfare.  It is hard to operate forensically while people are shooting at you.

Another conflict is the friction between the imperative to help people and the imperative to collect evidence before it disappears.  One FBI unconventional weapons coordinator told me some years ago that it was unfortunately easier to his task when all the victims were dead before he arrived, as it would be far easier for him to manage the incident scene. This comment sounds harsh and callused, and it indeed it is. But this example clearly exposes the conflict between compassion (the natural human desire to care for the injured) and the scientific (the rational desire to have the best evidence possible.)  Rescue efforts may compromise a crime scene and large scale search and rescue efforts could permanently damage the integrity of a crime scene from a