Legal Aspects of the Geneva Protocol of 1925

I. Introduction

In his policy statement of November 25, 1969, on chemical and biological warfare,1 President Richard M. Nixon declared that the Administration would ask the Senate for advice and consent to the ratification of the Geneva Protocol of 1925.2 At the same time, the President reaffirmed the renunciation by the United States of “the first use of lethal chemical weapons” and extended “this renunciation to the first use of incapacitating chemicals.” With regard to biological weapons, the President renounced the use of all biological weapons and methods of warfare, declared that the United States would confine its biological research to defensive measures, and ordered the Defense Department to make recommendations for the “disposal of existing stocks of bacteriological weapons.” On February 14, 1970, the President extended the ban on biological weapons to include toxins.3

The weight of opinion appears today to favor the view that customary international law proscribes the use in war of lethal chemical and biological weapons.4 It is less clear to what extent this prohibition encompasses the entire range of other chemical and biological warfare agents[1] and whether, in particular, it outlaws the use of tear gas and herbicides.[2] The use of some of these weapons in Viet-Nam and the controversy it has generated reduce the likelihood of full consensus on the scope of the prohibition under customary international law of chemical and biological warfare.[3] These considerations and the President’s decision to press for United States adherence to the Geneva Protocol plainly indicate that an understanding of the legal scope of that treaty is crucial to any meaningful assessment of present or future United States policy in this field. This article accordingly describes the obligations that the Protocol imposes, what steps the United States will have to take if it decides to become a party to the Protocol without accepting all of its obligations, and what legal problems it will encounter in doing so.

  • [1] The various types of chemical and biological warfare agents are described in a report of theSecretary General, Chemical and Bacteriological (Biological) Weapons and the Effects of TheirPossible Use, U.N. Doc. A/7575/Rev.1; S/9292/Rev.1 (1969).
  • [2] See, e.g., I. Brownlie, “Legal Aspects of CBW,” in S. Rose, CBW: Chemical and BiologicalWarfare 141, at 148 (1968); R. W. Tucker, “The Law ofWar and Neutrality at Sea,” 50 Naval WarCollege, International Law Studies 52—53 (1955). United States Department of the Army Field Manual 27—10, The Law of Land Warfare, par. 38(1956), takes no position on the state of customary international law and contents itself with a recitalthat the United States “is not a party to any treaty, now in force, that prohibits or restricts the use inwarfare of toxic or nontoxic gas ...or of bacteriological warfare.”
  • [3] In Res. 2603 A (XXIV) of Dec. 16, 1969, 64 A.J.I.L. 393, 394 (1970), the United NationsGeneral Assembly declared “as contrary to the generally recognized rules of international law, asembodied in the [Geneva] Protocol... the use in international armed conflicts of: “(a) Any chemical agents of warfare—chemical substances, whether gaseous, liquid or solid—which might be employed because of their direct toxic effects on man, animals or plants; “(b) Any biological agents of warfare—living organisms, whatever their nature, or infectivematerial derived from them—which are intended to cause disease or death in man, animals orplants, and which depend for their effects on their ability to multiply in the person, animal orplant attacked.” General Assembly, 24th Sess., Official Records, Supp. No. 30 (A/7630), p. 16. However, this resolution was adopted by 80 votes to 3, with 36 abstentions. The dissenting andabstaining states included most of the members of NATO and a number of other important militaryPowers, many of them parties to the Protocol. U.N. Doc. A/PV.1836, at 16 and 17 (1969).
 
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