[FROM THE WISCONSIN LAW REVIEW, VOLUME 1969, Number 2, The University of Wisconsin

BANNING POISON GAS AND GERM WARFARE:
SHOULD THE UNITED STATES AGREE?

GEORGE BUNN*

The United States Army Field Manual on the Law of Land Warfare states flatly that

the United States is not a party to any treaty, now in
force, that prohibits or restricts the use in warfare of
toxic or nontoxic gases ... or of bacteriological war-
fare.... The Geneva Protocol for the prohibition in
war of asphyxiating, poisonous, or other gases, and of
bacteriological means of warfare . . . is . . . not binding
on this country.1

This article will consider whether the principles of the Geneva Protocol have become so widely accepted that they apply to the United States even though it is not a party. It will analyze the effect of existing reservations to the Protocol, discuss the United States use of tear gases and herbicides in Vietnam in light of its provisions, and recommend that the Protocol be approved by the Senate. This article will first describe the international agreements dealing with poison gas and germ warfare, and the reasons which prevented the United States from becoming a party to them.

I. INTERNATIONAL AGREEMENTS DEALING SPECIFICALLY WITH
POISON GAS OR GERM WARFARE

A. The Hague Gas Declaration of 1899

The first treaty dealing specifically with poison gas was the 1899 Hague Gas Declaration which contained an agreement "to abstain from the use of projectiles the sole object of which is the diffusion of asphyxiating or deleterious gases.' Twenty-seven states became parties to this declaration, including all participants in the conference except the United States.3 The American representative, Navy Captain Alfred T. Mahan, refused to agree because gas projectiles were not yet in practical use or fully developed,

Visiting Professor of Law, University of Wisconsin. Formerly General Counsel of the United States Arms Control and Disarmament Agency (ACDA) and Alternate United States Ambassador to the EighteenNation Committee on Disarmament (ENDC) in Geneva, Switzerland. The views expressed in this article do not necessarily represent the views of ACDA or the United States Government.

1 THE LAW OF LAND WARFARE, DEPARTMENT OF THE ARMY FIELD MANUAL FM 27-10, 38, at 18-19 (1956).

2 Declaration (IV 2) Concerning Asphyxiating Gases reprinted in J.B. SCOTT, THE HAGUE CONVENTIONS AND DECLARATIONS OF 1899 AND 1907, at 225-26 (3d ed. 1918).

3 Id. at 226.

and because he thought gas warfare was just as humane as other forms of warfare.1

The language of this declaration was so limited that it had little if any effect on gas warfare during the First World War. In the first major poison gas attack of the War, at Ypres in 1915, the chlorine gas used by the Germans came from large cylinders, not the "projectiles" described in the declaration." The French used projectiles containing tear gas which they said was not an "asphyxiating or deleterious" gas within the meaning of the declaration." Similarly, a projectile used by Germany did not have "as its sole object" the diffusion of poison gas because, the Germans argued, it was also used for shrapnel." With these and other arguments, the existing limitations on poison gas were brushed aside in the First World War.

B. The 1919 Versailles Treaty

The treaty contained the following provision:

The use of asphyxiating, poisonous, or other gases and of analogous liquids, materials or devices being prohibited, their manufacture and importation are strictly forbidden in Germany.8

While the United States failed to give its consent to the ratification of the Versailles Treaty primarily because of its provisions establishing a League of Nations, the quoted language was incorporated by reference in the 1921 Treaty of Berlin between the United States and Germany.10 But the United States regarded it as only applicable to Germany.11 World War I treaties of peace

4 J.B. SCOTT, THE HAGUE PEACE CONFERENCES: AMERICAN INSTRUCTIONS AND REPORTS 36 (1916).

5 See E. CASTREN, THE PRESENT LAW OF WAR AND NEUTRALITY 195 (1954); M. GREENSPAN, THE MODERN LAW OF LAND WARFARE 360 (1959); J. SPAIGHT, AIR POWER AND WAR RIGHTS 189 (3rd ed. 1947). See also V. LEFEBURE, THE RIDDLE OF THE RHINE 33-34 (1921).

6 Bernstein, The Law of Chemical Warfare, 10 GEO. WASH. L. REV. 889, 905-06 (1942).

7 E. CASTREN, supra note 5, at 195; Bernstein, supra note 6, at 907. This argument was not, however, the basic justification given by Germany for the use of gas. See Kelly, Gas Warfare in International Law, 9 MILITARY L. REV. 1, 39-40 (1960).

8 Treaty of Versailles, June 28, 1919, § 171, reprinted in 3 TREATIES, CONVENTIONS, INTERNATIONAL ACTS, PROTOCOLS AND AGREEMENTS 3331, 3402 (Redmond ed.); 2 A. TOYNBEE, MAJOR PEACE TREATIES OF MODERN HISTORY 1265, 1367 (1968).

9 W.S. HOLT, TREATIES DEFEATED BY THE SENATE 249-307 (1933). 10 42 Stat. 1939, 1943 (1921) T.S. No. 658, at 14.

11 The United States' view is necessarily implied by the quotation from the Army Field Manual set forth at the beginning of this article. It is based upon the language of article 171 itself, and of the 1921 Treaty of Berlin which incorporated article 171 by reference for the benefit of the United States. See Kelly, supra note 7, at 24 & n.113.

applicable to Austria, Bulgaria, and Hungary contained similar provisions.12

C. The 1922 Washington Treaty on Submarines and

Noxious Gases

Drawing on the language of the peace treaties, the Washington Treaty stated:

The use in war of asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices, having been justly condemned by the general opinion of the civilized world and a prohibition of such use having been declared in treaties to which a majority of the civilized Powers are parties,

The Signatory Powers, to the end that this prohibition shall be universally accepted as a part of international law binding alike the conscience and practice of nations, declare their assent to such prohibition, and agree to be bound thereby between themselves and invite all other civilized nations to adhere thereto.18

This provision was based upon a United States proposal and was adopted at the urging of Secretary of State Hughes.14 Perhaps to help achieve later Senate consent, Senator Elihu Root was asked to represent the United States at the conference. In addition Secretary Hughes took pains to have an advisory committee of prominent citizens appointed by President Harding and attempted to mobilize popular opinion behind the treaty.15 As a result, the Senate gave its consent without a dissenting vote.16 French ratification was necessary, however, and the treaty failed because of French objections to its provisions on submarines.

D. The 1925 Geneva Protocol

This protocol added to the poison gas prohibition of the Washington Treaty a ban on bacteriological warfare. It provided in pertinent part:

12 See 5 H. TEMPERLY, A HISTORY OF THE PEACE CONFERENCE OF PARIS 209 (1920-24).

13 Treaty Relative to the Protection of the Lives of Neutrals and Noncombatants at Sea in Time of War and to Prevent the Use in War of Noxious Gases and Chemicals, February 6, 1922, § V, reprinted in 3 TREATIES, CONVENTIONS AND INTERNATIONAL ACTS, supra note 8, at 3116, 3118. 14 See text at note 116 infra.

18 See R. BUELL, THE WASHINGTON CONFERENCE 206 n.9 (1922); F.J. BROWN, CHEMICAL WARFARE, A STUDY IN RESTRAINTS 64 (1968). Among the members of the advisory committee were Samuel Gompers, Herbert Hoover (then Secretary of Commerce), John L. Lewis, General Pershing, Rear Admiral Rodgers, Franklin Roosevelt (then Assistant Secretary of the Navy), and J. Mayhew Wainright (Assistant Secretary of War). 16 62 CONG. REC. 4723-30 (1922).

Whereas the use of asphyxiating, poisonous or other gases, and of all analogous liquids, materials or devices, has been justly condemned by the general opinion of the civilized world; and

Whereas the prohibition of such use has been declared in Treaties to which the majority of Powers of the world are Parties; and

To the end that this prohibition shall be universally accepted as part of International Law, binding alike the conscience and the practice of nations:

Declare:

That the High Contracting Parties, so far as they are not already Parties to Treaties prohibiting such use, accept this prohibition, agree to extend this prohibition to the use of bacteriological methods of warfare and agree to be bound as between themselves according to the terms of this declaration.17

The Geneva Protocol was adopted at the insistence of the United States.18 However, probably because of the ease with which the Washington Treaty had sailed through the Senate, Secretary of State Kellogg did not make the effort to gain support for the Geneva Protocol that Secretary Hughes had made earlier for the Washington Treaty.19 Although Congressman Burton was the head of the United States delegation, no Senator was included.20 No advisory committee was enlisted. The Army's Chemical Warfare Service was not prevented from mobilizing opposition to the protocol.21 It enlisted the American Legion, the Veterans of Foreign Wars, the American Chemical Society, and the chemical industry.22 Senator Wadsworth, Chairman of the Military Affairs Committee, led the Senate opponents of the protocol.23 He argued that it would be torn up in time of war, and that poison gas was in any event more humane than many other weapons. Senator Borah, Chairman of the Senate Foreign Relations Committee, finally withdrew the treaty from Senate consideration, presumably because he and the Senate majority leader had concluded that they did not have the votes.24

The protocol came into force, however, without the United States.

17 Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, June 17, 1925; 94 L.N.T.S. No. 2138, at 67 (1929).

21 For a history of the activities of the opponents and proponents of the protocol, see id. at 102-08.

22 Id.; see also 68 Cong. REC. 152-54 (1926).

23 See 68 CONG. REC. 144-46 (1926).

24 Id. at 368.