the British proposal received wide support in principle, a working group be formed to deal particularly with the verification problem. 182 The Soviet Union attacked the British proposal as an attempt to subvert the Geneva Protocol. The Soviet representative said that if the conference were to follow the course suggested by the British, "we might destroy an existing, useful and important international document on the prohibition of chemical and bacteriological weapons without having replaced it by a better or indeed by any other international instrument. The United Kingdom proposed an expert study under the auspices of the United Nations Secretary General on the effects of the possible use of chemical weapons. 184 Poland proposed such a study for both chemical and bacteriological weapons. 185 The United States was prepared to accept either proposal but a consensus developed around the Polish plan. The conference recommended a study of the effects of both chemical and bacteriological weapons to the General Assembly186 which recently passed a resolution accepting the recommendations and directing that such a study be made.187 tion might be given inter alia to the possibility that a competent body of experts, established under the auspices of the United Nations, might investigate allegations made by a party to the Convention which appeared to establish a prima facie case that another party had acted in breach of the obligations established in the [proposed new] Convention." See U.K. Working Paper, supra note 179. 182 ENDC Statement of U.S. Representative George Bunn, supra note 181. 183 ENDC Statement of Soviet Representative Roshchin, supra note 26, at 26. 184 ENDC Statement of U.K. Representative Mulley, PV.387, at 6 (1968). 185 ENDC Statement of Polish Representative Jaroszek, PV.385, at 23 (1968). 186 Report to the United Nations General Assembly and the United Nations Disarmament Commission, E.N.D.C. Doc. ENDC/236 (1968). 187 G.A. RES. 2454 (Dec. 20, 1968). The terms of reference for this study are as follows: The aim of the report is to provide a scientifically sound appraisal of the effects of chemical and bacteriological (biological) weapons. At the same time, the report should serve to inform governments of the consequences of the possible use in war of chemical and bacteriological (biological) weapons, taking into account Resolution 2162B (XXI) of the UNGA of 5 December 1966, and should contribute to the consideration by the ENDC of the problems connected with these weapons. Chemical and bacteriological (biological) weapons should be treated by experts with experience in the respective technical fields. The report should include the following data: (1) The basic characteristics of chemical and bacteriological (biological) means of warfare. (2) The probable effects of chemical and bacteriological (biological) weapons on military and civilian personnel, both protected and unprotected. (3) Possible long-term effects on human health and ecology. (4) Environmental and other factors affecting the employment of chemical and bacteriological (biological) means of warfare. (5) Economic and security implications of the development, acquisition and possible use of chemical and bacteriological (biological) weapons and of systems for their delivery. This study, and the determination of the Geneva Conference to give chemical and bacteriological weapons further attention,188 indicate that a considerable amount of international effort probably will be devoted to this problem in the years ahead. The United States will no doubt continue to participate in these discussions. However, we would be more influential with the other important participants, all of whom are parties to the protocol, if we ratified it. This is particularly true since some of the proposals which will be discussed involve amendments to it. United States' interests would be better protected during the discussion of possible future agreements in this field if we became a full-fledged party to the protocol. At a minimum, ratification would limit the effect of Soviet propaganda attacks which tend now to reduce our influence with other delegates. B. Objections to Ratification 1. IMPERFECTIONS OF THE PROTOCOL Given the protocol's various problems, it can be argued that it is an imperfect instrument, that it needs revision, and that we should only adhere to it when it is revised.189 A procedure for alleviating many of the protocol's imperfections has been described above. The international discussions of the last two years make clear that most other countries regard the protocol as the basic instrument in the field, and some, including the Soviet Union, are adamantly opposed to revising it. Moreover, the problems of inspection involved in the United Kingdom's attempt to halt production and reduce or eliminate stockpiles of germ weapons are considerable.190 Thus the chances of achieving a broad international consensus on amending the protocol, or on a new agreement, are probably not great. We have already agreed to observe the principles and objectives of the protocol. Since other industrial states almost unanimously have adhered to it and are therefore sometimes unsympathetic to our reasons for not doing so, our insistence on a revision before we ratify is not likely to be very persuasive. We could not, in any event, promise Senate approval for the ultimate product of any efforts toward revision. 2. DANGER OF CLOSING OUR OPTIONS A second objection to ratifying the protocol is that in time of war other countries would not observe it while we would. We would 188 See Report, supra note 186. 189 Cf. U.N.G.A. First Comm. Statement of Maltese Representative Pardo, supra note 152. 190 See note 181 supra. Verification problems have haunted international discussions of this subject since at least the experts' consideration in 1924. 7 LEAGUE OF NATIONS OFF. J., supra note 91. thereby give up options to initiate the use of gas or germ warfare. If other countries should use gas or germ weapons in a future war, we would not give up our option to retaliate in kind by ratifying the protocol.191 Moreover, we no longer have an effective option to use poison gas or germs except in retaliation. Our publicly stated policy is that we will not be the first to use these weapons. We have said we would observe the principles and objectives of the protocol. We are probably bound through custom to its basic prohibitions. Our principal allies would almost certainly restrain any desire we might have to initiate poison gas or germ warfare. The sanctions for violating the protocol, notoriety, retaliation, and war crimes prosecutions, apply even without ratification. Thus, ratification would simply acknowledge the fact that our options are already closed. The foregoing discussion shows that we have little to lose and considerable to gain by ratifying the protocol. We can increase the strength of the protocol as a barrier to poison gas and germ warfare; help to clear up a few ambiguities and, in doing so, achieve wider support for United States interpretations; and enhance our standing for influential participation in the forthcoming discussions of proposals for additional limitations. On the other hand, if we insist on waiting until the protocol is revised, we will probably have to wait a long time and then have little influence in the revision. Finally, we give up no option which is now open to us by ratifying. In my view, the protocol is the best instrument likely to be achieved in the foreseeable future. The United States would be well advised to join it. 191 See notes 71, 79-86 supra and accompanying text. LETTER TO THE EDITOR OF THE NEW YORK TIMES FROM To the Editor: PHILIP NOEL-BAKER [From the New York Times, Dec. 9, 1969] PROTOCOL ON C.B.W. What does the Geneva Protocol on Chemical and Biological Warfare really mean? Does it allow the use in war of tear gas and herbicides? When I hear this question, I recall a talk I had in Geneva while the Conference of 1925 was going on. It was with a young French colleague, Henri Bonnet, later a long-term and well-trusted Ambassador to the United States. "Oh, yes," he said, "the form of words they've got is good. It prohibits every kind of chemical or bacterial weapon that anyone could possibly devise. And it has to. Perhaps someday a criminal lunatic might invent some devilish thing that would destroy animals and crops." In 1925 everyone in the Conference agreed with Henri Bonnet. It was their purpose to ban all C.B. weapons; and they were satisfied that the Protocol would do that. In 1930, Hugh Gibson, the U.S. delegate to the League of Nations Preparatory Disarmament Commission, questioned whether the Protocol prohibited the use of tear gases. In Britain we then had a Labor Government. Arthur Henderson was our Foreign Secretary, I was his Parliamentary private secretary; our delegate to the League Commission was the great Lord (Robert) Cecil. BANNED BY PROTOCOL Cecil was anxious that all doubt should be settled without delay. Henderson agreed, and instructed me, in cooperation with the legal section of the Foreign Office, to prepare a memorandum setting out the British view that "tear gases," like all other C.B. weapons, were forbidden by the Protocol, and calling on all other members of the Preparatory Commission to state their view. Cecil laid the memorandum before the commission on Nov. 18, 1930. Only Gibson voiced his doubt; no one opposed Cecil's arguments; every other member of the commission who spoke-representing France, Italy, Canada, Spain, Japan-confirmed that the tear gases were banned. This view was accepted without any question throughout the Disarmament Conference of 1932-3, and during its later stages, a new U.S. Delegate, Hugh R. Wilson, declared that the U.S. Government agreed that use of all tear gases was banned by international law. In the light of these facts, I find it difficult to understand how anyone can argue that the Protocol permits the use of "harrassing" gases and herbicides. PHILIP NOEL-BAKER The writer served in the League of Nations Secretariat and won the Nobel Peace Prize in 1959. (346) [From the Congressional Record, Apr. 21, 1969] ANALYSIS OF DIFFERENCES AND REPLIES ON CBW FROM DEPARTMENTS (By Hon. Richard D. McCarthy) Early in February of this year the activities of the United States in chemical and biological warfare were brought to my attention by a disturbing documentary shown on NBC television. I recognized that I knew almost nothing about this aspect of our military capability and decided to inform myself. My main interest was in the public policy questions relating to chemical and biological warfare. Why do we need a capability? What sort of capability do we have? What are our policies governing the use of these weapons? What do these activities cost us each year? What are the safety precautions taken to protect the public against accident? Are our academic and private institutions being improperly involved in chemical and biological research? In order to inform myself about our CBW program I asked the U.S. Army to brief those Members of Congress who were interested in this field. On March 4, 1969, the Army presented a briefing, most of which they insisted on classifying. I did not find that briefing satisfactory; it did not answer the public policy questions. So I then prepared a comprehensive set of policy questions which I sent to Secretary of Defense Laird, Secretary of State Rogers, Director of the Arms Control and Disarmament Agency Smith, Ambassador to the United Nations Yost, and Dr. Henry Kissinger of the White House staff. While waiting for replies I have made a rather extensive study of the information that is available in public; I have received assistance from several organizations that are involved in a study of chemical and biological warfare, and I have consulted a number of individuals who are very knowledgeable in the field. I have now received replies from all of the departments and agencies that I contacted with the exception of Dr. Kissinger. His office said that they had hoped to prepare a reply to my March 20, 1969, letter by last Friday but had not had time to do so, which is perhaps as much a comment on the priority placed on CBW policy in relation to other matters as it is on the pressures of the Executive Office. I would like to comment at this time on the nature of the information that I have received. Chemical and biological warfare activities are shrouded in secrecy, unnecessarily so in my view. The Army's unclassified briefing was perfunctory at best; the classified presentation was not much better. I get the impression that the security curtain is parted only when it serves the interests of the advocates of the program. I found the replies from the departments heartening in some respects, but more deeply disturbing in most others. By far the most revealing information appears in sources available to the public such as occasional statements by public officials, open publications, and press reports, both domestic and foreign Perhaps the most immediately disturbing aspect of the replies that I have received from the departments is the contradiction between some of the replies and the information that is available to the public. These contradictions should be resolved; both the Congress and the American public deserves a full explanation if the credibility of our public officials is to be maintained. Some of these contradictions are First. Defense states that we maintain a limited offensive capability in chemical weapons; that the carefully controlled inventories are adequate for tactical response. Yet we have in storage about 100 million lethal doses of nerve gas at Rocky Mountain Arsenal and Tooele Army Depot. Col. S. J. Efnor stated that the gas from a single bomb the size of a quart fruit jar could kill every living thing in a cubic mile. The inventory of nerve gas seems to be more than that required for an adequate tactical response. 38-044-70- -23 |