III. INTERNATIONAL AGREEMENTS AND U.S. POLICY

The only time the U.S. Senate has ratified a treaty containing limitations on gas warfare was the Washington Conference on the Limitation of Armament in 1922. However, France objected to the wording of another limitation on the use of submarines, and the treaty never came into effect.

An earlier international agreement which contained a specific prohibition against the use of asphyxiating or deleterious gases was the Hague Convention of 1899. The United States did not ratify this article of the convention. U.S. delegate, Admiral Mahan gave among his reasons:

"It seems to me that it cannot be proved that shells with asphyxiating gases are inhumane 12 or unnecessarily cruel machines. of war ***" 13

This is an interesting argument, not because it was used 70 years ago, but because it is still used, even with much more potent gases than Admiral Mahan could have known about, including the nerve gases. 14

14

In 1925 the so-called Geneva Protocol noted that gas warfare had been condemned by the consensus of the civilized world and that it was prohibited by treaties to which most powers were party. It prohibited the use of both poisonous gases and bacteriological methods of warfare, to be universally accepted as a part of International Law, binding alike the conscience and the practice of nations.

The United States may have had a superior chemical warfare capability at the time; it certainly had no biological weapons-no country did. Nevertheless, although the U.S. delegates (along with those of 37 other countries) signed the Protocol, the U.S. Senate refused to ratify the treaty. The Protocol came into force on February 8, 1928, for the signatory nations. Two months later, on April 8, 1928, the Soviet Union, which was not among the original signatory nations, acceded to the protocol with the reservation that it was not bound as to countries which did not ratify or accede or which did not observe the restrictions of the Protocol. Britain and France also acceded along similar lines. During a discussion of the charge of U.S. germ warfare in Korea in the 1953 U.N. General Assembly, the American representative saw fit to make reference to the Soviet reservations. This, of course, evoked the Soviet reminder that the United States had not ratified the Protocol at all, even with reservations.

12 See app. C for discussion of the "humane-inhumane" argument.

Chemical-Biological-Radiological (CBR) Warfare and Its Disarmament Aspects, a study prepared by the Subcommittee on Disarmament of the Committee on Foreign Relations, U.S. Senate, Aug. 29, 1960, 86th Cong., second sess. (p. 6).

Proponents of chemical and biological weapons who resort to this point may have in mind the fact that World War I gases produced fewer casualties and "fewer deaths per casualty" than did conventional weapons. An important fact to be considered is that in the class order of primary physical terror, ranking high if not first, is the "loss of airway"-fear of not being able to breathe, of strangling, of suffocation. With the chlorine and mustard gases the victim dies from asphyxiation if he is exposed to heavy concentrations; with the nerve gases, which are 10 to 30 times more effective regardless of how they enter the body, the biochemistry of the muscles of respiration is violated, the victim cannot breathe and dies. The widespread sensibilities about chemical, biological, and radiological warfare are otherwise based upon the "unseen weapon"-terror of that which works from within. It does not matter whether or not these preconceptions" and perceptions are physiologically and anatomically correct-they are there and are likely to so remain.

The United States, however, appears in practice to have been an informal party to the Geneva Protocol. Rule 29 of the War Department's Rules of Land Warfare (1940 edition) recognized that the U.S. was not a party to any treaty restricting the use in warfare of toxic or nontoxic gases but nevertheless stated observance of the prohibition laid down in the Protocol. The reservation is that of reciprocity, and warnings to this effect were made by the President to both Japan and Germany during World War II. (See appendix D.)

The effect of all of those nations who hold reservations to the Protocol, whether they signed the treaty or not is to change its textual meaning from "never to use them" to "never to use them first." The latter is the U.S. policy stipulated by President Roosevelt in 1943 and re-affirmed by the Deputy Secretary of Defense before the Subcommittee on Disarmament of the Committee on Foreign Relations in 1967: "It is clearly our policy not to initiate the use of lethal chemicals or lethal biologicals." 15 This, of course, is not altogether unlike the overall U.S. strategy of deterrence. Presumably, the U.S. CBW capability today is a part of that strategy.16

In April 1965, Secretary Rusk stated U.S. policy in Vietnam as follows (quoted in part):

"Some of you have asked me for some comment as to the policy aspects of the use in Vietnam of gases of the tear-gas family, back in December and January. And I am very glad to respond to those questions.

"The shadow of gas warfare has been raised in connection with these incidents. That is not involved. We are not embarking upon gas warfare in Vietnam. There has been no policy decision to engage in gas warfare in Vietnam. We are not talking about agents or weapons that are associated with gas warfare in the military arsenals of many countries. We are not talking about gas that is prohibited by the Geneva convention of 1925 or any other understandings about the use of gas.

"Now, we can understand the concern around the world and in this country about the specter of gas warfare. These memories go back to World War I, when tens of thousands were killed or maimed by what might be called 'military gases.'

"This is not involved here. We are talking about a gas which has been commonly adopted by the police forces of the world as riot-control agents-gases that are available commercially and have been used on many occasions, some in this country, and on many occasions in other countries. ***

"Now, that is at the heart of the policy question. We are not engaged in gas warfare. It is against our policy to do so, as it is against the policies of most other governments that I know about. ****

"Now, these are the essential policy aspects of the problem. We do not expect that gas will be used in ordinary military operations. Police-type weapons were used in riot control in South Vietnam-as in many other countries over the past 20 yearsand in situations analogous to riot control, where the Viet Cong, for example, was using civilians as screens for their own operations.

15 U.S. Armament and Disarmament Problems, hearings before the Subcommittee on Disarmament of the Committee on Foreign Relations, U.S. Senate, 90th Cong., first sess., Feb. 3, 6, 7, 28, and Mar. 1, 2, 8, 1967 (p. 63).

16 The American role in CBW development and employment is discussed by Seymour Hersh in his recent book on "Chemical and Biological Warfare: America's Hidden Arsenal." (See Bibliography.)

9 17

"But this does not represent a new departure of policy, the introduction of new weapons, the introduction of any new approach to the very difficult problems in that country. It is the fear of retaliation, according to many, which prevented the use of poisonous and asphyxiating gases in World War II and since that time, rather than the Geneva Protocol. While some would agree, it may also be argued that the Protocol is an articulation of that fear in the form of an international quasi-legal instrument of restraint. Surely the Protocol is now binding to some 62 countries which have acceded to it, but it also weighs upon countries who have signed no documents whatsoever on CB weapons. This fact was noted by the international law authority, H. Lauterspecht in Oppenheim's International Law, seventh edition as follows:

"But the cumulative effect of customary law and of the existing instruments having binding force, such as the Hague Declaration, *** and (the corresponding provisions) of the Protocol of 1925, is probably to render such prohibition legally effective upon practically all States." 18

In December 1966 the United Nations passed a resolution calling for strict observance by all States of the principles and objectives of the Protocol signed at Geneva on 17 June 1925, and condemning all actions contrary to these objectives. The United States cosponsored the operative paragraph with Canada, Italy, and the United Kingdom and voted for it, joining 100 other nations in doing so. The world took little notice of this nearly unanimous vote, perhaps because of the diminishing force of this type of semi-legal restraint the imprecision of which leaves the acceptable nature of the agents and targets undefined. Prior to the vote and apparently in anticipation of overwhelming passage in the General Assembly, Ambassador Nabrit (U.S.A.) issued the following statement (quoted in part):

"By a massive endorsement of the amended resolution in the First Committee, which I am sure will be repeated in the General Assembly this morning, the near totality of the membership of the United Nations has, in strong and unequivocal terms, demanded strict and unconditional compliance with the principles and objectives of the Geneva Protocol of 1925. * * *

"In voting for this resolution, my delegation wishes the record to show clearly what U.S. policy has been and remains with regard to the use of chemical and bacteriological weapons in the conduct of warfare.

"The Geneva Protocol of 1925 prohibits the use in war of asphyxiating and poisonous gas and other similar gases and liquids with equally deadly effects. It was framed to meet the horrors of poison-gas warfare in the First World War and was intended to reduce suffering by prohibiting the use of poisonous gases such as mustard gas and phosgene. It does not apply to all gases. It would be unreasonable to contend that any rule of international law prohibits the use in combat against an enemy, for humanitarian purposes, of agents that Governments around the world commonly use to control riots by their own people.

17 Press release dated Mar. 24, 1965, and published with questions and answers in the Department of State Bulletin, Apr. 5, 1965 (pp. 488-489). 18 Oppenheim, L., International Law, 7th ed. (1952), vol. 11. (p. 348).

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