STATEMENT OF PROF. GEORGE BUNN, UNIVERSITY OF WISCONSIN SCHOOL OF LAW, MADISON, WIS.

Mr. BUNN. Thank you, Mr. Chairman.

I appear in support of House Resolution 439 et al., by Mr. McCarthy, Mr. Fulton, Mr. Gallagher, Mr. Fraser, Mr. Dellenback, Mr. Nix, Mr. Broomfield, and others.

I have long believed that the Senate should be given an opportunity to reconsider its failure to ratify the Geneva Protocol of 1925. This morning, I would like to set forth for you a little of the history of the protocol, the differences of view over its interpretation, and the pros and cons of its ratification.

Let me first state as precisely as I can what the protocol covers and what it does not cover. It prohibits one, the first use in war of "asphyxiating, poisonous, or other gases, and of all analogous liquids, materials or devices" and two, the first use of "bacteriological methods of warfare."

It does not prohibit the use of poison gas or germs in war in reprisal against their first use by an enemy. It does not prohibit research, development, testing, production or stockpiling of poison gas or germ

weapons.

It does not prohibit the domestic use of any weapons, including tear gases or herbicides.

It does not prohibit the first use in war of flame throwers, napalm or even chemicals such as "smokes" used for concealment.

HISTORY OF THE GENEVA PROTOCOL

Let me turn now to the history of the protocol. Its language banning "asphyxiating, poisonous, or other gases, and all analogous liquids, materials or devices" is drawn from the Versailles and other peace treaties of World War I.

In a 1922 conference convened by President Harding in response to legislation requesting the President to initiate international negotiations to achieve limits on shipbuilding, Secretary of State Charles Evans Hughes and Senator Elihu Root urged adoption of this language.

It became part of the 1922 Treaty on Submarines and Noxious Gases. The support in the country for this treaty was so great that it was approved in the Senate without dissent. The French, however, failed to ratify the treaty because of its provisions on submarines, and it never came into force.

A former chairman of this committee, Congressman Theodore Burton, was as responsible as any man for the subsequent American effort that produced the Geneva Protocol.

President Coolidge appointed him head of a 1925 delegation to a Geneva arms traffic conference. Before departing, Chairman Burton secured the President's approval to make a proposal to the conference on gas warfare.

After some discussion, the conference agreed on a ban on gas warfare in the language of the Versailles Treaty, with an additional prohibition on bacteriological warfare.

WHY THE PROTOCOL FAILED TO PASS

Probably because of the ease with which the similar 1922 treaty had passed the Senate, President Coolidge and Secretary of State Kellogg did not make the effort to gain support for the 1925 protocol that had been made in 1922.

The Army's Chemical Warfare Service, the American Chemical Society, veterans organizations and segments of the chemical industry all opposed it.

The arguments in the Senate were that the protocol would be ignored in time of war, and that poison gas was, in any event, more humane than bombs and bullets. The protocol was finally withdrawn from Senate consideration, presumably because the majority leader did not have the votes.

An American representative to the U.N. explained in 1952:

When the Geneva protocol was submitted to the Senate for ratification, America was retreating rapidly into isolationism and neutralism and feared any involvement with the League of Nations and any treaties originating from Geneva.

I understand from your meeting on Tuesday that you were particularly interested in why the 1922 treaty got through so easily, and the 1925 one didn't. Of course, all I have to go on is the historical records of the time.

I think there were a number of reasons. First of all, in 1922, the country was going through a period much like we are in today, a very antiwar, pacifist kind of period. There was a debate on the military budget in the Senate led by old Bob LaFollette. Instead of ABM's, it was naval shipbuilding. Instead of military procurement authorization, I think it was a naval appropriations bill. In any event, one of the products of that lengthy debate was a provision in the legislation requesting the President to call a conference with Japan and England and France, to deal with the naval shipbuilding problem.

And, it was at that conference that the conferees, after dealing with the submarines and some other things, turned to gas warfare.

NATIONAL MOOD OF ISOLATIONISM

Later in 1925 and 1926, I have a feeling that the country had gone even further into isolationism, and that there wasn't the same sentiment, that people had forgotten the sentiments that they had had just that few years earlier.

I think there were other differences, too, and part of it was the matter of presentation, or the matter of handling the protocol.

In 1922, Secretary of State Hughes went to great effort to appoint prominent citizens' advisory committees, and to involve the armed services. There was a considerable attempt to build up public support for the whole effort, with the result that, as you know, the treaty went through the Senate without a dissenting vote.

In 1925, Secretary Frank Kellogg apparently felt that there wasn't going to be any trouble, because the earlier treaty had gone through so easily.

No effort was made to rally public support, so far as one can tell from reading the records. There wasn't any citizen's advisory committee and the armed services weren't involved in the executive

discussions to the same extent. In fact, the original authority given Congressman Burton to make the proposal at the conference was gotten from the President at a meeting when the Secretary of State and Secretary of Commerce, but nobody from the War Department, were present.

And after that, I think the Chemical Warfare Service felt completely at liberty to attack the treaty. It did so, and stirred up a lot of adverse sentiment.

I think the congressional relations effort was better in 1922 in that Secretary of State Hughes appointed a Senator as Chairman of the American delegation dealing with the gas warfare problems. Indeed, there were a total of three Senators on the delegation. In 1925, there were none in the delegation. There was Congressman Burton, but however you fellows may feel, the other body may not regard a Congressman as a proper substitute.

Mr. ZABLOCKI. Let me interrupt to leave no doubt in your mind how we feel about it. [Laughter.]

PROTOCOL PREVENTED GAS USE IN WORLD WAR II

Mr. BUNN. Well, anyway, the protocol came into force without the United States. By 1939, it had been ratified by 44 countries, including all major European powers. Many credit the protocol with a major role in preventing gas warfare in Europe during World War II.

It symbolized the abhorrence for poison gas which even military men had after the first war. This abhorrence, and military skepticism as to the utility of gas warfare, both helped to prevent a repeat of the first war's gas attacks.

The threat of retaliation, of course, constituted a deterrent. But it was the protocol that placed poison gas and germs in a special class and provided a standard for the belligerents to follow.

At the beginning of our participation in World War II, the State Department became concerned that the Japanese, not being parties to the Geneva Protocol, would engage in chemical warfare.

The British, French, Italian, and German Governments had exchanged pledges to observe the protocol; they had all been parties; the British had made the same offer to Japan, but it had replied evasively.

The Chinese charged that the Japanese had used gas in China. President Roosevelt, therefore, announced that we condemned the use of poison gas as "outlawed by general opinion of civilized mankind."

He threatened swift retaliation by the United States if such gases were used against any of our allies. The Japanese replied privately that they would refrain from the use of gas if we and our allies would do so.

The Joint Chiefs gave some consideration to using gas toward the end of the island war in the Pacific but they never got as far as asking President Truman for authority to do so.

NO GAS USED BY UNITED STATES IN WORLD WAR II OR KOREAN CONFLICT

No gas, even tear gas, was used by U.S. forces in World War II or in the Korean war, although military commanders requested authority to use gases in both wars.

We were charged by the North Koreans with engaging in germ warfare, and there was quite a debate in the U.N., but as you will remember, we denied the charge, and the North Koreans refused to admit a U.N. team attempting to find the facts.

Since World War II, the United States has repeatedly declared its support for the no-first-use principle of the Geneva Protocol. In 1952, our representative at the United Nations Disarmament Commission declared our support for "the general objective of the (Geneva) treaty, the effective outlawing of poison gas and biological weapons against human beings."

When President Eisenhower was asked at a 1960 press conference whether he planned a change in our no-first-use policy, he said:

No official suggestion has been made to me, and so far as my own instinct is concerned, it is not to start such a thing first.

During President Johnson's administration, the United States supported resolutions passed in 1966 and 1968 by the United Nations General Assembly, calling for "strict observance by all states of the principles and objectives" of the protocol.

UNITED STATES USED TEAR GAS FIRST IN VIETNAM

The United States, South Vietnam, and Australia have used tear gas in Vietnam as have the North Vietnamese and the Vietcong. Our side was the first to do so. Our use was justified on "humanitarian grounds"- that it would reduce the number of people killed, particularly noncombatants, and that it would be analogous to riot control.

The authorized justification given by the United States to the United Nations was that 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." Secretary Rusk said:

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 years-and in situations analogous to riot control, where the Viet Cong, for example, were using civilians as screens for their own operations.

Where Vietcong were protected by human shields or by tunnels or caves, the alternatives were machineguns, napalm, high explosives, or fragmentation grenades.

Tear gas certainly seemed a more humanitarian weapon. But, after the humanitarian justification had been made, reports began coming in from Vietnam that large numbers of tear gas grenades had been dropped on Vietcong strongholds from helicopters which were followed immediately by B-52's dropping high explosives or antipersonnel fragmentation bombs.

The purpose of such a combined attack would appear to be to flush out those hiding in tunnels-whether civilians or combatants, and, of course, you don't know from a B-52-to incapacitate them with gas, and then instead of capturing them, to wound or kill them with bombs. This seems wholly inconsistent with the humanitarian justification given earlier by the United States.

In September, the Pentagon repeated this justification saying again that riot control agents were useful in "reducing civilian casualties" and "are used when they will help save lives." The following week, the New York Times described a report from the American command in Saigon which said that tear gases had rarely been used to save civilian lives.

RATIONALE FOR GAS DOES NOT FIT PRACTICE

Indeed, the very volume of the tear gas used in Southeast Asia indicates a widespread use in ordinary military operations. We have procured some 14 million pounds for Southeast Asia since 1964.

With an efficient dispensing device, this is enough to cover the entire area of South Vietnam. It is more than half the total weight of the mustard gas used by all parties in World War I.

Thus the political rationale given by the United States for using tear gases that they were to be used for humanitarian purposes to protect civilians and not in ordinary military operations-no longer fits our military practice.

THE USE OF DEFOLIANTS IN VIETNAM

Somewhat the same thing has happened with the defoliants we are using in Vietnam. We justified their use "to control weeds and other unwanted vegetation," saying they involve "the same chemicals and have the same effects" as weedkillers used domestically in the United States.

At first, defoliants were used to destroy jungle trees and plants, particularly along roads, because this vegetation was used as a cover by enemy troops from which to attack American and allied soldiers.

This was not unlike the common use of herbicides to kill weeds along highways in this and other countries. Gradually, however, the South Vietnamese and then the Americans began using herbicides to kill rice crops in Vietcong held areas.

Although the chemicals remained the same as those used for certain domestic weedkillers, the use was no longer "to control weeds and other unwanted vegetation," the justification given by the United States to the United Nations. As with tear gases, our political rationale had been eroded by our military practice.

U.S. HISTORICAL POSITION ON TEAR GAS

The United States has never taken the view that it could use tear gas and defoliants in Vietnam because it was not a party to the Geneva Protocol of 1925.

Instead, we said that these agents were not prohibited by the protocol, adding that we supported the objectives of the protocol.