weighing both military and non-military factors. In the case of CBW, especially lethal varieties, the balance seems heavily weighted against the weapons. IV. CONCLUSION One of the possible results of eliminating our silent arsenal might be the avoidance of the dangers of escalation presently believed associated with CBW. If such a policy were adopted, the risks of stockpiling and the horrors associated with using these weapons could be avoided. Consideration of applying the brakes in our headlong rush toward developing chemical and biological killers should be a matter of the greatest urgency. These weapons seem ill-suited to today's military strategies. At best, they might be characterized as unacceptable substitutes for weapons already in use. Their abandonment could provide a greater atmosphere of rationality in military calculations and a more secure state of mind for modern day man by removing one horrifying threat to his existence. 1 Infectivity: Indicates the potency of the parasite to penetrate and multiply in the host's organisms, regardless of the clinical manifestation of illness. In fact, there are several agents by which the great majority of the exposed population will be infected without developing clinical symptoms. of any arthropod vector. The figures listed under incubation period, duration of disease, and mortality are based on would be deliberately spread in massive concentrations as agents of warfare, the incubation periods 4 The availability of vaccines is no indication of their degree of effectiveness. Source: U.N. report. (FROM THE WISCONSIN LAW REVIEW, VOLUME 1969, Number 2, The University of Wisconsin BANNING POISON GAS AND GERM WARFARE: 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 warfare. ... 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 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."2 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." 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. |