Biological Warfare-Two Views

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The possibility of the use of biological warfare in any future war raises important questions about its legality. Resented herein are two divergent views as to the legality of biological warfare under present international law and as to what that legality ought to be. While The Judge Advocate General's School does not adopt or endorse either position, they are presented here with a view toward stimulating legal research and analysis in this field and with the hope that additional inquiry into the subject may be made by international lawyers, bath military and civilian. The importance of the questions discussed here cannot be overstated.

VNITED STATES USE OF BIOLOGICAL WARFARE* BY MAJOR

NEINMT**

1. INTRODUCTIONThe ability to engage in biological warfare is, today, a redity.' Discussions on biological warfare are available in the United States in both technical and non-technical materials. The ethical, the legal, and the practical aspects are favorite topics of dis-cussion.

   These topics are approached in one of three ways.

   'This article was adapted from a thesis presented to The Jvdge Advocate Generai'a Sehml, US

   Amy, CharlottuYilie, Virginia, while the author WPI B member of the Eleventh Career Course. The opinions and eoneivsiona pre. rented herein are those of the author and do not neeesaarily represent the views of The Judge Adv-te General's Schml or any other governmentel

   of Militarv Aooeala. . ..

   1 See, s.~,

   U.S. UEP'T OF ARMY FIELD

   MAXUAL NO. 3-5, TACRCS UDTT.JXN~QUB$ OP CHEMICAL BIDLOCICAL AND RADIOLOOICAL (CBRI WUIPUIE (19581 [hereafter cite4 a8 FJI 8-51, 116: U.S. UEP'T OP ARMY, TECH. NIDAL MANU*L NO. 3-216, MILITARY B 1 o m ~ WUIPARI AOENTB (1856) [hereafter cited PI TM bZ161, p~~e.8.

   WILLIAM H.

   2. 7. "Biologicpi warfare" is used io

   thili artlele in prefemnce to "bactarioloeical warfare." The latter. or '"gemwarfare," would be limitei to the uw of bwteria. Bioiogid warlare, how. ever, indud- the use of bacteria, other mierc-organisms, higher forma of life, such as imte snd other pets, and tho toxic pmductr of these agents.

   First, some consider biological warfare so horrible, so terrifying, that it should not be allowed under any circumstances.P

   Secondly, others think that biological warfare has been grosslyoverrated It is argued that biological warfare is directed toward temporary incapacitation rather than the permanent disability or death which results from more conventional weapons, and thus the arguments on the legality or morality of this type of warfare are regarded as exaggerated.' This second position is also maintained by those who argue that the means of waging biological warfare are ineffective weapons against which there are effective defenses, and therefore biological warfare has no military utility.'

   *"Any country which really deuirpa -e would limit rather than enlarge the means of human slaughter. This applies with ~pffialforce to B destrue-tive fame rhieh has such frightful posdbilitier." So spoke Rep. Burton of Ohio before the Hmne of Rep. ai the U.S.on Jan. 19, 1827 (63 COXC. RE.19691, He "819 %peaking in behalf of his proposed amendment to a War Dep't appmpriations bill to reduce the amount of money being appropriated for the Chemical W'arfare Service to "produce, manufacture, and teat ehemmal war-fPre gages or other toxic substances." The remarks w e ~ e dirrted primarils at the U.S.'s faiivre to ratify the Geneva Gaa Protoeol of June 17, 1925.

   "Bur the surest due to the state of warid morality i8 to be found in the attitude toward the horror-weapons, and in the failure to take ms effrtive measures againdt their spread. . . . But we do know that there hss hmuch

   talk of . . . direage gem8 to bring the ternow of pestilence to entire ppuls-tions. . . . ITlhe faet remain, that they . . . are mentioned 83 if they repre sent no mors than new methain of exterminating hovrefliea . . . there appears to be little rdi~ation that they are as antihuman, as diabolical m the Satanof old demonlore eovld ever have eoneeived. COBL~YTZ,

   FROM

   ARROW

   TO ATOM

   BOMB 460 (1963). The -me author in 1927 predicted the use of 'peatilenee breeders af bsctenalogy' m the 'next war?" COBLEFIZ, MULCHIYC YES 450, 454 (19271.

   8 "[CBR chemical, brolopicai, radiologid warfarel is not a monstrosity born of the devil. CBR naed not be B killer. In fact, much emphasis ii laid upon temporary ineapaeitation from which the mtim recoven completely." 106 Cono. REC. 2117-2113 (181) (Remarks of Rep. Sikes). "To me there is mething inemnriatent in singling Out gam, ehemieala, bacterin and atoms and putting them outside the pale of international IDW,while mther m-8 of deatmction account& for ylme 40,000,000 dead and rounded in 183846.. . ."

   EIOCY, TxrS WUI BUSIKEBS 86 (1951).

   4"Preventive diieaae knowledge hm never ken more advanced. And so the present time is the least propitroua of sli in history for any nation to attemDt m warfare. . , ,

   been waged against our tr&. . , , Our methods of diseane control . . . may be covntai on to be aueeesdul sgaimt either neighborly or belligerent g e m .

   "Neither new dim= nor gem for new dise-8 can be padvvd at will. They m e not manufacturable like airplane% or bombs, nor can they be trained iika blmdhounds. Even if new forma of infative agents are axprimentally developed, measurn for their defense, b t h individual and populationa.iae, will .imultanB3udy dvsines" Raymond W. Bliw. Maj. Gen. USA (Ret.), former Surgeon Ornerd of the Army. G a m Woriwe, Atlantic Monthly, No". 1962. pp. 65-57,

   2 A00 ll6lB

   BIOLOGICAL WARFARLNEINAST

   The third approach requires that each means of biological warfare be considered e~ 8 separate weapon. This approach con-siders biological warfare io have a wide range. Homble and ineffective weapons are at one extreme. Through the spectrum at the other end are found weapons which produce acceptable amounts of suffering and disability in relation or proportion to the desired military objective. Thus, separate conclusions may be required for each means of biological warfare.6 This third approach represents the most objective opinion.

   From the available discussion, it may be assumed that biolagi-cal warfare is B distinct possibility in any war pitting the United States against the Soviet Union. Bath of these giants, however, would consider several factors before resorting to such warfare: What military advantages can be gained by a use of biological warfare? What palitical advantages or disadvantages are possible through such means? What are the moral or humanitarian a-peds of biological warfare? Is bioiogical warfare legal?

   This article will attempt to answer the last question, exploring specifically the legality of use by the United States of biological warfare in any future conflict.

   One word of caution must be added before Ptarting the formal inquiry. Any practical person approaching this subject should keep foremost in his mind the following common aense approach:

   . . . [Ilf it should wer come to an all-out contest by force between the super.Pawuers af our age, it would be aheer day-dreaming to expect that in Their fight for J Y T Y ~ V ~ ~ , and IO neeeswddy world hegemony. they would refrain from the use a i any weapon in their amend

   . . .At this point, the first, and mast seif.denymg. duty of the international lawyer in ta warn against the dangerous illusion that his find-inga on the legaiity or illegality of nuelem weapons are likely to influ-ence one way 01 the other, the decision on the use oi theae &neea of mmhsnized bsrbsriam.aAlthough this admonition was originally written in relation to nuclear weapons, it applies with equal validity to biological warfare. The legality of biological warfare may be one of the eon-siderations affecting the decision to employ such tactics. but it will not be the cantrolling factor.

   11. THE HISTORY AND POSSIBLE FUTURE OF BIOLOGICAL WARFARE

   A. HISTORYHand-bhand fighting is the oldest surviving means of combat.

   6 See O'Brien, BiObpicaUChrmid Wwjmre md the IntBrnvtional Law of Wa7, 61 GEO. L. J. 1 (1962).

   0 SCHWUIZ&NBERO~, THE LEDALLTIob Nvc- WEAPONS

   6 M 8 (1968).

   A00 BlslB a

   As guns using black pawder were not invented until early in the 14th Century,' biological warfare may be the second oldest means. Primitive forms of biological warfare are recorded as facts of that century. Bodies of plague victims thrown over the walls of a fortress in Crimea during the 14th Century by the Tartars forced the defending Italians to abandon their stronghold. The latter learned a lesson from this experience and included instructions in a manual of the 16th Century for constructing artillery shells for the delivery of disease to the enemy.8

   Biological warfare is not a stranger ta the American continent. European traders reportedly gave the blankets of smallpox victims to the Indians in North America during the colonial days in an effort to reduce their fighting strength. More than a century later, during World War I, German agents in the United States sent disease to Europe by infecting animals shipped there.'

   Germany's biological warfare during World War I was not confined to the United States. It is alleged that the Germans and the Austrians dropped garlic and awe& infected with cholera bacilli in Rumania and Italy during the war,lo that they infected Rumanian cavalry horses with glanders," and that they infected wells with disease in the South-West African campaign of 1915.12

   Research into the means of waging biological warfare was conducted in Germany, Russia, and Japan during the 1930'~.'~

   The

   United States got a belated start in such research, but did carry it on during World War 11.1'

   Since World War 11 the United States has had a continuing program of research in biological warfare. Chemical-biological warfare research resulted in the death of three Americans in the ten years before 1960. This research was costing from 35 to 40million dollars a year, or about one-tenth of one percent of the then current defenae budget.'^

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