tear gases and chemical herbicides. It is, therefore, not irrelevant to the interpretation of the protocol.

Law professors, including myself and Mr. Buergenthal, have studied the negotiating history of the protocol at some length and come to somewhat differing conclusions. My own view is that the language and negotiating history do not clearly show that the protocol prohibits the use of tear gas and chemical defoliants in war. In any event, I think that any future American interpretation of the protocol should depend less on the negotiating history than on a realistic appraisal of the pros and cons-military, diplomatic and arms control of the use of these agents in the future.

1966 JUSTIFICATION FOR USE OF TEAR GAS AND HERBICIDES IN VIETNAM

I believe the committee is entitled to know my governmental connection with this issue so that you may appraise any bias that may have crept into my testimony. While I had no part in the decision to authorize the use of tear gas and herbicides in Vietnam, I did help draft the justification made afterwards for their use. This justification was given on instructions by American delegates to the United Nations in 1966. Let me quote from the portions of their statements dealing with tear gas. First, Ambassador Nabrit:

[The protocol] 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."

Second, Ambassador Foster:

When .. civil authorities must enforce law and order in the face of an unruly mob, they must often decide, when other means of persuasion have been exhausted, whether to use brute force and lethal weapons, and thus risk injury and death perhaps even to innocent bystanders, or to disperse the mob by recourse to riot control agents such as tear gas, which have no harmful aftereffects. And in Vietnam, when the Viet Cong takes refuge in a village and uses innocent civilians and prisoners as shields, would it be more humane to use rifle and machine gun fire and explosive grenades to dislodge and destroy the Viet Cong and in so doing risk the lives of the innocent and wounded hostages?" Note that these justifications emphasize the humanitarian purpose for using tear gas, point to the problem of protecting civilians when they are mingled with combatants, and limit the agents used to those that governments around the world commonly use to control riots by their own people.

Senator CHURCH. May I interrupt to ask at this point, is it your position that we are using tear gas in Vietnam for humanitarian purposes?

Mr. BUNN. No, sir; I am going to discuss that. My position is that that was the justification we gave in 1966. I do not believe that that squares with the actual practice in Vietnam. The gist of my remarks on this score is that what we are doing in Vietnam does not fit the justi

1 See Bunn, "Banning Gas and Germ Warfare: Should the United States Agree?" 1969 Wisconsin Law Review 375 (1969); Baxter and Buergenthal, "Legal Aspects of the Geneva Protocol of 1925," 1964 American Journal International Law 853 (1970).

fication that we gave to the United Nations at all. Senator CHURCH. I see.

JUSTIFICATION FOR USE OF TEAR GAS HAS SHIFTED SUBSTANTIALLY

Mr. BUNN. Tear gas is certainly more humanitarian than napalm, fragmentation grenades or high explosives when the enemy is using civilians for shields or is hiding in tunnels or caves. The early experience included cases in which tear gas saved civilian and enemy combatant lives, but it now includes so many other kinds of cases that the justification has shifted substantially. It is now about the same as that given for any weapon-that the weapon, in this case tear gas, "saves American and allied lives," not civilians or combatant enemy lives. Rear Adm. William E. Lemos was the chief Defense Department witness in the Zablocki hearings on chemical and biological warfare. In his prepared statement, he said:

As the effectiveness of these riot-control agents in reducing casualties became increasingly evident in such situations as suppression of hostile firepower and clearance of fortified positions and underground facilities, American commanders at all levels began to see other ways in which the use of the riot-control agents,. particularly the new agent CS, could save many American and allied lives. As a result, its applicability to other types of operations spread among U.S. units in Vietnam.

Since they save lives, riot control agents have been treated as normal components of combat power.

That is as ordinary everyday weapons.

Thus, the humanitarian justification given to the United Nations was not observed in practice. Meselson and Blumenthal, drawing largely upon information from the Department of Defense, report the following:

As described in Army training manuals, CS is also used in conjunction with artillery and air strikes. If the chemical agent is placed on the target immediately prior to bombardment with antipersonnel munitions, the enemy may be panicked into leaving his cover to escape the CS and thereby be rendered more vulnerable to conventional arms. There is good evidence that this tactic works against poorly disciplined troops. In an action against a well-entrenched enemy force on the Bon Son Plain in May 1967, the 1st Air Cavalry Division combined CS attacks with air strikes on the enemy position, followed closely by an infantry/tank assault. The action resulted in 74 enemy deaths. A captured North Vietnamese lieutenant reported that the CS had caused his troops to leave their positions, resulting in increased casualties.

(The Military Value and Political Implications of the Use of Riot Control Agents in Warfare in "The Control of Chemical and Biological Weapons," at 73 (Carnegie Endowment for International Peace, 1971).)

From saving civilian and enemy lives-the "humanitarian" justification given the United Nations-tear gas had become simply a better killer at least in some of its uses. And there was also escalation in the nature of the agents used. You will remember that the justification referred to agents that "Governments around the world commonly use to control riots by their own people." One of the agents sent to Vietnam and used briefly by the South Vietnamese, according to Meselson and Blumenthal, is adamsite (DM), a vomit gas stockpiled by both sides in World War II. While its use in riot control is not unknown, it is not a gas commonly used for that purpose by Governments around the world. I doubt very much whether it is in much use in this country as a riot control agent, for example.

The principal agent now used in Vietnam is CS-2. It is not commonly used around the world for riot control, either. The finely pulverized particles in CS-2 have been coated with silicone to make them much more persistent than ordinary CS, the riot control agent. This means the gas may remain effective for a longer period of time than ordinary CS or CS-1. It is made of the same chemicals as the ordinary CS except it is coated with silicone to make it water-resistant.

ESCALATION OF JUSTIFICATION FOR CHEMICAL HERBICIDES

The same escalation from diplomatic justification to military use took place with chemical herbicides. The rationale given to the United Nations in 1966 was that herbicides were being used "to control weeds and other unwanted vegetation." In fact, as you know, one of the uses was to destroy crops in Vietcong controlled areas. As you also know, however, this use has now been stopped. Secretary Rogers testified that the entire herbicide program is being phased out, much to the credit of the Nixon administration.

DIFFICULTY OF APPLYING ARMS CONTROL RULES IN WARTIME

This experience demonstrates the difficulty of applying any but the clearest, easiest to understand arms control rules in wartime, when decisions are left to many individual commanders in many different battle situations. Suppose our UN rationale had been the accepted arms control rule and that we had been fighting an enemy who had an effective gas warfare capability in Vietnam. Escalations by us of the kind which actually happened would surely have been seized upon by the enemy as a violation of the rule-a violation which might well be the basis for further escalation by the enemy. This in turn, we would have contended, was a violation-perhaps justifying another escalation on our part, and so on.

"NO GAS OF ANY KIND" IS BEST RULE

Looking at the dangers of escalation in future wars, "no gas of any kind" is clearly the best rule to establish now. If we hold open the option to use tear gases, countries which now have little or no gas capability will feel the need first to acquire gas masks and then gas grenades, gas dispensers, gas projectiles and the like. They will begin to train their troops first in defenses against tear gases, and then on how to use tear gases themselves. From there it is not such a long step to acquiring nerve gases (because the Americans have them). With widespread proliferation of nerve gases, and with tear gases of various kinds in actual wartime use, the dangers of escalation, it seems to me, are increased immeasurably.

By holding open the tear gas option, we may increase substantially the danger that nerve gases will be used in future wars. It seems to me that very substantial arguments of military need must be put forward to justify a departure from the simple rule: "No gas of any kind."

NEW REVIEW OF USE OF RIOT CONTROL AGENTS AND CHEMICAL HERBICIDES

Secretary Rogers announced in his testimony here on March 5 that the Nixon administration had just initiated "a new review of the use of riot control agents and chemical herbicides in the Vietnam conflict so that the additional data obtained from the field can be used for an examination of the implications and consequences for U.S. policy of their future use in war." This seems to me to be the sort of extensive policy review that should be made to resolve questions such as whether there is any military need which really counterbalances the dangers of escalation involved in a tear gas loophole. However, I doubt from the way that the review was described, that it can be done very quickly.

From Secretary Rogers' description of the review I assume that it will draw in part upon the herbicide study which the National Academy of Sciences is conducting. As I understand it, that study is unlikely to be completed in much less than 2 years, although there will be an interim report, as I understand it, in perhaps a year.

In light of all this, the main options which appear to me to be open to the committee are as follows:

COMMITTEE COULD AWAIT ADMINISTRATION'S NEW REVIEW

1. The committee could simply await the new administration review announced by Secretary Rogers before taking action on the protocol.

If that review could be accomplished in a matter of a few months, it would be worth waiting for. Six months would not be too long, but if it is at least 2 years away then in my view, it probably is not worth waiting for. I would hate to see the Senate delay another 2 years to give a consent which has already been delayed 45 years.

Senator CHURCH. Couldn't that be put just the other way around, though, with equal logic? Since the Senate has already waited 45 years, what is the difficulty with waiting another two?

Mr. BUNN. Well, from where I sit I think the problems are that the whole treaty might lose the momentum that it now has. There is a real interest in the protocol now in the country and in the Senate, and I think the same sort of thing could happen as happened in 1926. The interest would die away. People would turn to other things-there may be other things that come along that have become more interesting. Or the war could get worse and that would lead the administration to feel it had to use some of these things again. That would delay the protocol some more.

I have seen so many arms control opportunities lost because we did not take something when it was in our hands because we wanted something better. Later we lost the whole thing. What is going on in the SALT talks now disturbs me very much. At the beginning we wanted an ABM agreement, and the Russians were not ready for that. Now the Russians seem, from reading the press, to be ready to have an ABM agreement and we don't want one. You have got to strike while the iron is hot in this business, I feel. The chances are so slight of getting things anyway that you need to take the progress whenever you can.

If I could be sure that in 2 years the protocol would go through, I would have no trouble. I would rather see it go through then with these two loopholes closed, but my fear is that it might not go through at all. It might just lose the momentum which it now has. I would hate to see the interest already built up in the protocol dissipated by another long delay-perhaps jeopardizing the ultimate vote. I would hate to hear the reactions of the rest of the world if the United States, the original proponent of the protocol and the last major country in the world remaining outside it, should put off decision 2 more years.

COMMITTEE COULD RECOMMEND ADOPTION OF UNDERSTANDINGS

2. The committee could recommend that the Senate adopt understandings on tear gas and/or herbicides in its resolution of advice and consent. This is the procedure which Senator Nelson has recommended with respect to herbicides.

Assuming that these understandings agreed with the interpretation given the protocol by the great majority of other countries, and Senator Nelson's understanding does (as to herbicides), this procedure would largely resolve the international controversy. The understandings, when circulated with the notice of the deposit of our instrument of ratification, would not be rejected by the other parties because most of them are in agreement with them. Indeed, some of the countries who now agree with us would probably change their minds. The result might well be unanimous, or almost so.

On the other hand, if the understanding reflected the administration's present interpretation of the protocol, they would clearly not achieve this happy result. In all probability, they would be rejected by a good many important countries when they were circulated. These countries could reject not only the understandings but any participation by the United States in the protocol as far as they were concerned. If our understandings were very important to them, they could reject treaty relations with us altogether. It would be better not to ratify the protocol than to risk such a result.

The argument I have heard most against adopting understandings banning tear gas and herbicides (like Senator Nelson's) is that they would constitute an admission that we were violating the protocol all along, an admission that U.S. military men were guilty of war crimes. This argument is simply without foundation. The precise terms of the protocol will not be applicable to the United States until our instrument of ratification is deposited. I have argued elsewhere that, as the result of our long practice and many statements, we are bound by customary principles of international law not to use poison gas and biological methods of war.2 But for us this customary rule does not include tear gases and chemical herbicides because both American statements and American practice have made clear that we did not regard ourselves as bound not to use these agents. Under three rulings of the International Court, this is sufficient to take us out of any customary rule on tear gas and chemical herbicides-even assuming one does exist for certain other countries.

2 See Bunn, Banning Poison Gas and Germ Warfare: Should the United States Agree?, 1969 Wisconsin Law Review 375 (1969).

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