3. THE GENEVA PROTOCOL OF 1925

In 1924, a committee of experts under the auspices of the League of Nations considered the effects of chemical and bacteriological warfare. The evil of greatest concern of these experts, and to participants at the later conference, appeared to be the use of poison and mustard gases against large cities.119 The experts also discussed tear gases, calling them "lachrymatory" agents:

The efficacy of lachrymatory gas, coupled with its property of not causing permanent disablement, has led to its adoption by police organizations. By its means criminals may be apprehended without loss of life.120

laws and customs of land warfare, including "Article 23 [in which] certain prohibitions have been laid down in particular on the employment of poison and poisoned weapons." Memoranda for the Members of the American Delegation to the Conference on Limitation of Armaments (Including the Private Manufacture of Arms), the Economic Weapon of Article 16, and the Control of Traffic in Arms, at the Paris Peace Conference and Under the League of Nations 8, 10, 98-99 (GPO 1921). Neither the Treaty of Versailles nor the Hague regulations are thought to prohibit tear gas. See notes 97-107 supra and accompanying text.

During Senate consideration of the Washington Treaty of 1922, the one Senator who criticized the treaty said, among other things, that the phrase "other gases" was "all inclusive." 62 CONG. REC. 4729 (1922) (remarks of Senator Wadsworth, Chairman of the Senate's Military Affairs Committee). He added that the French text used the word "similaires" but that "other gases" in the English text seemed to have a different meaning. However, he concluded, this was "a point of comparatively small importance." The debate contains no other reference to the point, and no reference at all to tear gases.

119 The gas to be employed would not necessarily be one which only disables human beings for a time, since the object would be to hamper or destroy some continuous activity aimed at by the attack. Mustard gas, for instance, dropped in large quantities would be likely to hang about the cities and slowly penetrate the houses.

...

[H]eavy poison gases linger, even in the open country, for quite a long time. In a city it is difficult to say how long they might remain, and during all that time the danger would continue.

[It may well be that an unscrupulous belligerent may not see much difference between the use of poison gas against troops in the field and its use against the centres from which those troops draw the sinews of war.

7 LEAGUE OF NATIONS OFF. J., supra note 91, at 126; See also PROCEEDINGS infra note 121, at 313.

A similar concern was expressed by the American Advisory Committee to the 1922 Washington Conference. They stated:

The frightful consequences of the use of toxic gases, if dropped from
airplanes on cities, stagger the imagination.
If lethal gases

were used in such bombs [high explosive bombs as those used
to attack cities in the First World War], it might well be that such
permanent and serious damage would be done, not only of a material
character but in the depopulation of large sections of the country,
as to threaten, if not destroy, all that has been gained during the
painful centuries of the past.

CONFERENCE ON THE LIMITATION OF ARMAMENTS, supra note 109, at 732. 120 7 LEAGUE of Nations OFF. J., supra note 91, at 122.

"121

The 1925 Geneva conference adopted as the scope of the protocol's prohibition the Versailles phrase "asphyxiating, poisonous or other gases" proposed by the United States. In making this proposal, Congressman Burton, the American representative, expressed a strong desire for a provision "relating to the use of asphyxiating, poisonous and deleterious gases. The report of the legal committee characterized the American proposal as one dealing with "asphyxiating, poisonous or other similar gases."122 Another committee described the class as "asphyxiating, poisonous and other deleterious gases."123 There is no recorded discussion of tear gases by the delegates. If they had been determined to prohibit gases the experts had said were in use by police departments to prevent loss of life, they might have been expected to do so more explicitly, or at least to have discussed the point. 124

4. THE 1930 ATTEMPT TO RESOLVE THE QUESTION

In 1930, the United Kingdom addressed itself to the difference between the French and English texts, a difference which created "a serious ambiguity in the Geneva Gas Protocol of 1925 as well as in all Treaties and Conventions regulating gas warfare signed since the War."125 The United Kingdom solicited the views of

121 LEAGUE OF NATIONS, PROCEEDINGS OF THE CONFERENCE FOR THE SUPERVISION OF THE INTERNATIONAL TRADE IN ARMS AND AMMUNITION AND IN THE IMPLEMENTS OF WAR 155 (1925). (emphasis added). An argument can be made that the conference intended a more sweeping ban on use of gas than it did on export of gas. An American proposal dealing with export had as its scope "asphyxiating, toxic or deleterious gases." Id. at 161 (emphasis added). The export proposal was rejected as impractical because a distinction between lawful and unlawful exports would present great technical difficulty. A prohibition on the use in war of agents which also had various domestic peacetime uses did not present the same difficulties. But nothing in the debates indicates that the export proposal was designed to exclude tear gases while the use-in-war proposal was not. And as indicated, the scope of the American proposal for a ban on use was described by the American delegate as "asphyxiating, poisonous, and deleterious gases."

122 Id. at 745 (emphasis added). 123 Id. at 596 (emphasis added).

124 As indicated earlier, the Senate failed to give its consent to the Geneva Protocol. During the Senate debate, an opponent of the protocol said that it "undertakes to protect us against all gases. The language of the treaty is not 'fatal gases,' or 'deadly gases.' It is asphyxiating, poisonous, or other gases.' 68 CONG. REC. 148 (1926) (remarks of Senator Reed). Later he added that this language would embrace "tear gas" which is used by police. Id. at 150. To this, the floor manager of the treaty replied: "This treaty would not interfere with that." Id. (remarks of Senator Borah). The protocol's opponent answered that it would "stop us from using that gas against the next savage race with which we find ourselves in war." Id. (remarks of Senator Reed).

125 Preparatory Commission for the Disarmament Conference, LEAGUE OF NATIONS Doc. c.4.M, Series X, Minutes of the 6th Sess., pt. 2, at 311 (1931).

other governments in order to obtain a uniform interpretation on whether or not the use of tear gases was prohibited by the protocol. The British considered that "the use in war of 'other gases,' including lachrymatory gases, was prohibited."120

The French shared this view. Their reply stated that the English and French texts were identical in meaning and that tear gases were prohibited in war notwithstanding their use domestically by police departments.127 The delegates of 10 other states concurred, several saying that they did so because of the difficulty in distinguishing between lethal and nonlethal gases.128 A majority remained silent..

Only the United States delegate openly disagreed with the British view.120 The American representative noted the technical difficulties of classifying gases and suggested that the question be considered by the Geneva Disarmament Conference. He added:

[W]e seek a maximum prohibition of inhumane agencies, but, at the same time, we should not be led to bring into disrepute the employment of agencies which not only are free from the reproach of causing unnecessary suffering, but which achieve definite military or civil purposes by means in themselves more humane than those in use before their adoption. I think there would be considerable hesitation on the part of many governments to bind themselves to refrain from the use in war, against any enemy, of agencies which they have adopted for peacetime use against their own population, agencies adopted on the ground that, while causing temporary inconvenience, they cause no real suffering or permanent disability, and are thereby more clearly humane than the use of weapons to which they were formerly obliged to resort to in time of emergency.130

The preparatory commission's report noted that "the Commission felt itself unable to express a definite opinion on this question of interpretation. Very many delegations, however, stated that they were prepared to approve the interpretation suggested in the British Government's memorandum."131 The committee recognized, however, that the question remained open.182

126 Id.

127 Id. at 311-14.

128 Id. Canada, China, Czechoslovakia, Italy, Japan, Romania, Spain, Turkey, Yugoslovia, and the U.S.S.R. agreed with France and the U.K. 129 Twenty-seven governments participated. DEP'T STATE, REPORT OF THE PREPARATORY COMMISSION FOR THE DISARMAMENT CONFERENCE 8-9 (1931).

130 LEAGUE OF NATIONS Doc. c.4.M, supra note 125, at 312. 131 DEP'T STATE, REPORT, Supra note 129, at 45.

132 Id.

No resolution of it has ever been achieved. In subsequent League discussions of "qualitative disarmament," tear gases were examined, the American delegate insisting that their use by police was legitimate. In 1932, a special committee on chemical and bacteriological weapons ac

5. CURRENT INTERPRETATION

While the 1930 discussions were not conclusive of the Geneva Protocol's meaning, the then British view was widely accepted. One basis for that view, however, has since disappeared. The British were concerned that, unless tear gases were prohibited, many countries would build up their arsenals and manufacturing capabilities. But many countries have done this anyway for deleterious gases clearly prohibited by the protocol in order to be prepared to retaliate against use of gas by another country.133

Another concern was the difficulty of drawing a line and the danger, if the line were fuzzy, of escalation from tear gases to more harmful substances. This remains a critical problem. The United States has attempted to draw the line by restricting the permitted gases to "agents that Governments around the world commonly use to control riots by their own people."134 This test is at least reasonably precise. It would probably legitimize only common tear gases such as CN and CS. CN, and to a lesser extent CS, are used by over 50 countries to quell domestic riots, and to capture criminals resisting arrest.135

In the 1966, 1967, and 1968 debates in the United Nations General Assembly and the Geneva Disarmament Conference, only the Soviet Union and its allies actively opposed the United States position that tear gases in war did not violate the protocol.136 Belgium agreed with the American view.137 The French, without mentioning tear gases, hinted that they no longer believed in giving the protocol the broad interpretation they had given it in the 1930's.138 The United Kingdom and Kenya referred to the opposing cepted this point of view "although it was still of the opinion that lachrymatory gases should not be considered separately from the point of view of their use in warfare, since there were serious practical objections to any discrimination between gases." 1 CONFERENCE FOR THE REDUCTION AND LIMITATION OF ARAMAMENTS 210-12 (1932); id., vol. 2, 452-56 (1932); id., vol. 2, series B, Minutes of the General Commission 569 (1933). The discussions were not directed at the Geneva Protocol but at devising new agreements to ban chemical and bacterial agents, and to regulate their production, importation, and stockpiling.

133 See Stone, supra note 57, at 566-57. For this reason, in Stone's view, the British reasoning has been "destroyed by the facts." Id. 134 See note 89 supra and accompanying text.

135 See U.N.G.A. First Comm. Statement of ACDA Director Foster, supra note 46, at 742; Press conference of Secretary of Defense McNamara in Washington, March 23, 1965; Letter from Deputy Secretary of Defense Vance to Congressman Kastenmeier (D. Wis.), March 31, 1965. These gases were used for similar purposes by the British in Cyprus in 1958 and in British dependent territories on a number of occasions. See Press conference of Secretary of Defense McNamara, supra; 709 PARL. DEB., H.C. (5th ser.) 1823-26 (1965).

136 See note 90 supra and accompanying text. But cf. ENDC Statement of Swedish Representative Myrdahl, PV. 391, at 9 (1968).

137 See U.N.G.A. First Comm. statement of Belgian Representative Fourdin, PV.1608, at 17 (Nov. 14, 1968).

138 See note 61 supra.

views on tear gas without taking sides.139 Most countries, however, remained silent.

6. APPLICATION OF STANDARDS TO USE OF GASES IN VIETNAM The principal gases used by United States forces in Vietnam are the tear gases, CS and CN.140 However, a vomit-inducing gas, adamsite, has also been used against the enemy.141 Adamsite appears no longer to be authorized.142 It is clearly not an agent that "[g]overnments around the world commonly use to control riots by their own people."143 Its use represents an escalation of the kind feared by the proponents of encompassing all gases, including tear gases, within the protocol.144

The use of tear gas was justified by the United States on "humanitarian" grounds-that it would reduce the number of people killed, both combatants and noncombatants, and that its use would be analogous to riot control.145 In situations where Viet Cong were protected by human shields, or by tunnels or caves, the alternatives were rifles, machine guns, napalm, flame throwers, high explosives, or fragmentation grenades. Tear gas certainly seemed a more humanitarian weapon. But reports from Vietnam reveal that large numbers of tear gas grenades have been dropped on Viet Cong strongholds from helicopters which were followed by B-52's dropping high-explosive or anti-personnel-fragmentation

139 See U.K. Working Paper on Microbiological Warfare, E.N.D.C. Doc. ENDC/231, at 1-2 (1968); U.N. First Committee Statement of Kenyan Representative Odhiambo, 21 U.N. GAOR, First Comm. 2 (1966).

140 Letter from John S. Foster, Director of Denfense, to Senator Brooke (R. Mass.), November 9, 1967.

141 Letter from Deputy Secretary of Defense Vance, supra note 135; S. HERSH, supra note 87, at 168, 170, 177, 179.

142 Letter from John S. Foster, supra note 140.

143 S. HERSH, supra note 87, at 168, 183-85, 61-62; 709 PARL. DEB., H.C. (5th ser.) 1823 (1965).

144 See notes 113, 114, 128 supra and accompanying text.

145 When, for example, 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 after-effects. And in Viet Nam, 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 machinegun fire and explosive grenades to dislodge and destroy the Viet Cong and in so doing risk the lives of the innocent and wounded hostages? U.N.G.A. First Comm. Statement of ACDA Director Foster, supra note 46, at 743.

We do not expect that gas will be used in ordinary military operations. Police-type weapons were used in riot control in South Viet Nam-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. Press Statement of Secretary of State Rusk, 52 DEP'T STATE BULL. 529 (1965) (emphasis added).