Gas Warfare in International Law

AuthorMajor Joseph B. Kelly
Pages01
  1. ISTRODUCTION

    This study will deal with one aspect of the larger problem of the legai control of weapons in warfare. The twentieth century has witnessed a revolution in weapons. The plane, the submarine, and gas all appeared in World War I. The plane and the submarine are now standard equipment. Gas was banished from the stage. However, It lingers in the tuings along with the atom and the germ leading a virile life of its own, refusing to join barbed spears, glass-filled shells, and dumdum bullets in the museum of history.

    A, The Problem

    The United States does not consider itself bound by any treaty that would forbid it from resorting to the use of toxic chemical agents in the event of war. The problem is whether or not the United States is nevertheless restricted in regard to gas warfare by a customary rule of international law, by a general principle, or by a law-making treaty. To answer this problem customary and conventional international law will be critically examined in order to ascertain if there exist positive rules that would prohibit any state from the use of toxic chemical agents as weapons of war.

    Such an examination is important at the present time because of the continued research and development of chemical agents by the United States Armed Services, and because of the prospects of R possible nuclear diaarmament.

    1. The Unsolved Portions of the ProblemThe problem of the use of gas has been discussed by many writers. Hoeerer, five principal facets require further study. These may be grouped as follows:

      * This article is B reproduetion of the author's dismtation submitted to the Faculty of the Gradvate School of Georgetown University, June 1960, in partial fulfillment of the requirements far the degree of Master of Arts. The author is grateful to the Georgetown Graduate Schaai for permission to print this dmertstian. The pinions and conelunon~ presented herein are those of the author and do not necessarily represent the TI~S of The Judge Advocate General's School, the Department of the Amy, or any ather governmental sgmcy.

      **Member of the Faeuits, The Judge Advoeate General's School, U.S. Amy,

      Chadottesdle, Virginia; member of the Ohio State Bar; and grnduate of the University of Cincinnati College of Law.

      T*GD 100'884d 1

      1. Writers who rely upon "unnecessary suffering" as the key to the problem have not, in their writings, analyzed either the concept of this general principle or the actual effect of gas in World War I. Both need be explored further before this general principle can be invoked. 2. Writers who rely upon ''practice" as the answer to the problem have not critically analyzed the practice of the United States. 3. h'o one has studied from a legal standpoint the gases developed since World War 11. 4. Training manuals of the United States Army have not been studied to determine if the tme of gas warfare being conducted is in accord with the international law of rar.

      5, Few have attempted to treat the legal problems of gas warfare comprehensively. The treatments by various text writers amount, partially because of space limitations, to statements of conclusions. The factual bases and legal reasoning back of the conclusions have not been fully set forth.

    2. The Procedure Adopted to Solve the ProblemThe following procedure will be adopted in an attempt to throw some light on these unsolved or partially solved areas:

      First: The actual use of gases in warfare will be studied in order to discover (1) why they were used, (2) their effect upon their victims, and (3) their tactical effect.

      Second: The characteristics of new gases will be analyzed in order to determine their possible effect upon their victims, their probable tactical use, and their legal implications in international law.

      Third: With a knowledge of the use and characteristics of gases in mind, an analy8is >will be undertaken of the various international efforts to limit gas in order to see (1) why gas was sought to be limited, (2) the position of the various states at the conferences, and (3) the legal effect of such efforts at limitation.

      Fourth: The practice of states during wartime in regard to their use or non-use of gas will be investigated in order to see if such practice has created a custom of international law.

      Fifth: Treaties, custom, general principles of law, judicial decisions, and the views of international law text writers will be studied in order to determine the present state of the law.

      Sisth: The present state of the law will be critically evaluated. 2 *co 100488

      GAS WARFARE IN INTERNATIONAL LAW

      11. THE HISTORICAL DEVELOPMENT OF GAS WARFARE '

      At 5 p m on 22 April 1915 a thick yellow smoke was Seen to bellow up from the German trenches between Langemarck and Bixschoute near Ypres, Belgium. Soon a gas wall of chlorine two miles long and a hundred feet high began to drift toward the French positions at Langemarck. Chemical warfare had begun.*

      The seed of chemical warfare had always been present in military thought. Only a proper combination of conditions was re-quired to bring it to a vigorous life. The required conditions did not exist until the latter part of the nineteenth century, and the proper combination was not reached until the First World War.

    3. Early History of the Use of Gas

      The earliest recorded use of ga8 in military operations was at the seige of Plataea, 428 B.C., during the Peloponnesian Wars. The Spartans saturated wood with pitch and sulphur, placed it under the city wa118, and set fire to it. A choking, poisonous fume arose. However, a sudden rainstorm put out the fire.$ Five years later the same tactics were a complete succesãt the siege of Delium.' There the poisonous fumes kept the defenders from putting out the fire. It wa8 the fire and not the fumes that was intended to do the damage. More specific uses of poisonous gases as such were recorded in the Middle Ages. In 1456 Belgrade waa saved from the attacking Turks by a paison gas cloud, prepared by an alchemist. Rags were dipped into a chemical and, when dry, burnt.' The resulting smoke wrought such death among the Turks that the Christian commander ordered that such a weapon should be reserved far use only against infidels. In this unique incident gas had demonstrated its effectiveness. However, the practical use of gas was not feasible until science could intelligently unlock the secrets of nature. Alchemy was yet at the threshhold of chemistry. B. Forewarnings in the Xheteenth CenturyThe nineteenth century witnessed the sudden fioaering of the

      1 "Gas warfare" i8 B popular misnomer Sanctioned by long usage. It includes

      not only tme gs~esbut BiJo finely powdered solids and liquids. Great Britain.

      War Office, .Mdiocz! Mantid of Chcnioal Wwfare Chemical Publishing Co.. 18411, p. 7 : TY 3-216 Chenriral Agent8 (Wsshinpton: U.S.

      Gay. Printing2 Great Britain, OBdal History ai the Great War, Operations Franoe and Belgium, 1915, compiled by James E. Edmand. and 6. C. Wynne (2 ~ 1 . ; London: Msemiilsn and Co., 1827-1936), I, p. 176.a Thuwdides, Histand of the Prloponnesian Ways. Tranalated by Blr R. W.Livinmtone, (London: Oxford Univ. Preaa, 18431, p. 137.

      6 Thc Complete Writings oi Thuwdidss, Tho Peloponnerion War. Translated by R. Crawley, IN. Y.: Random House, 18341, p. 262.

      BHsinz Leipmann, Poison in the Air (Philadelphia: J. B. Lippineott, 1837). pp. 31.52.

      A 0 0 110,@8 S

      MILITARY LAW REVIEWscience of chemistry. The mind of man immediately turned to ita practical use in war.

      In July 1811, British naval officers observed that fumes from sulphur kilns in Sicily destroyed all vegetation and animal life for a considerable distance around the kilns. Based on this abservation a memorial was presented to the Prince Regent on 12 April 1812 by the Admiralty recommending the adaptation of sulphur fumes to warfare. The Prince referred the recommendation to three commissioners. After studying the idea they rendered a favorable report.

      It was not until the siege of Sebastapol, during the Crimean War, that the immediate use of sulphur was contemplated. Admiral Lord Dundonald, with knowledge of the favorable report of 1812, produced a concrete plan to capture the Russian forts by suffocating the Russian garrison with sulphur fumes. However, a new committee, appointed by the English Government to examine Admiral Dundonaid's scheme, concluded that the effects of SUI-phur fumes were so horrible that no honorable combatant would use the means required to produre them. The committee, therefore, recommended that the scheme ~hould not he adopted and that Lord Dundonald's account of it should he destroyed.6

      The use of sulphur was suggested again in connection with the siege of Peterrburn in ihe American Civil War.'

      The Civil War saw two other serious poison gas suegestians. On April 6, 18G2, a Xr, John 1%'. Doughty, of Sew I'ark City, submitted a letter with drawings to Edwin M. Stanton, the Secretary of War.8 He suggested the manufacture of a shell containing a chamber for liquid chlorine immediately behind the normal explosive compartment. Its purpose was to rout an entrenched enemy, protected from normal explosives, by enveloping him in gas heavier than air. Nr. Doughty, in the closing paragraph of his letter, discussed the moral question inwlved. He thausht that such a gas, after the experience he gained from observing the first eight months of the Civil War, would lessen, not increase the sanguinary character of the battlefield and at the same time render conflicts more decisive in their results.

      e The details of Admiral Lord Dundonald's plan tomher with correspondencebetween Lord Palmerstan and Lard Panmure concerning It B T ~

      set out in A.A.

      Friea and C J. West, Chrmioal Warfare (FY

      : YeGrar.Hd1. 1021). Pp. 24.1 General Harace Porter, Campaigning With Grant (N.Y..

      Century, 19061,

      p. 372.

      8 Reported in F. Stambum Haydan, '".& Pro,oied Gai Shell, 1362.'. The Joiirnol of the Ameirean .M*lita7y H:stu,a Foundation, Val. 11, No 1, (Spring, 1938)...

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