Nuclear, Biological and Chemical Warfare and U.S. Part One Policies…

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It starts with the “Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of Warfare”, more commonly known as the Geneva Protocol. This is the 1925 treaty prohibiting the use of chemical and biological weapons in international armed conflicts. This was signed at Geneva on 17 June 1925 and entered into force on 8 February 1928. It was registered in the League of Nations Treaty Series on 7 September 1929. The Geneva Protocol is a protocol to the Convention for the Supervision of the International Trade in Arms and Ammunition and in Implements of War signed on the same date and followed the Hague Conventions of 1899 and 1907.

It prohibits the use of “asphyxiating, poisonous or other gases, and of all analogous liquids, materials or devices” and “bacteriological methods of warfare". This is now understood to be a general prohibition on chemical weapons and biological weapons but has nothing to say about the production, storage, or transfer. Later treaties did cover these aspects – the 1972 Biological Weapons Convention (BWC) and the 1993 Chemical Weapons Convention (CWC).

A number of countries submitted reservations when becoming parties to the Geneva Protocol, declaring that they only regarded the non-use obligations as applying to other parties and that these obligations would cease to apply if the prohibited weapons were used against them.

The main elements of the protocol are now considered by many to be part of customary international law.

Assessments of the Protocol in 2005, took the view that the historic record showed it had been largely ineffectual. Specifically, it did not prohibit:

1) use against not-ratifying parties
2) retaliation using such weapons, so effectively making it a no-first-use agreement
3) use within a state's own borders in a civil conflict
4) research and development of such weapons, or stockpiling them

In light of these shortcomings, it is noted that "the Protocol (...) resulted in a legal framework that allowed states to conduct [biological weapons] research, develop new biological weapons, and ultimately engage in [biological weapons] arms races".

Despite the U.S. having been a proponent of the protocol, the U.S. military, and the American Chemical Society lobbied against it, causing the U.S. Senate not to ratify the protocol until 1975, the same year when the United States ratified the Biological Weapons Convention.

In 1966, United Nations General Assembly resolution 2162B called for, without any dissent, all states to strictly observe the protocol. In 1969, United Nations General Assembly resolution 2603 (XXIV) declared that the prohibition on the use of chemical and biological weapons in international armed conflicts, as embodied in the protocol (though restated in a more general form), were generally recognized rules of international law. Following this, there was a discussion of whether the main elements of the protocol now form part of customary international law, and now this is widely accepted to be the case.

There have been differing interpretations over whether the protocol covers the use of harassing agents, such as adamsite and tear gas, and defoliants and herbicides, such as Agent Orange, in warfare. The 1977 Environmental Modification Convention prohibits the military use of environmental modification techniques having widespread, long-lasting or severe effects. Many states do not regard this as a complete ban on the use of herbicides in warfare, but it does require case-by-case consideration. The 1993 Chemical Weapons Convention effectively banned riot control agents from being used as a method of warfare, though still permitting it for riot control.

In recent times, the protocol has been interpreted to cover internal conflicts as well international ones. In 1995, an appellate chamber in the International Criminal Tribunal for the former Yugoslavia stated that "there had undisputedly emerged a general consensus in the international community on the principle that the use of chemical weapons is also prohibited in internal armed conflicts." In 2005, the International Committee of the Red Cross concluded that customary international law includes a ban on the use of chemical weapons in internal as well as international conflicts.

The push for a U.S. ban on biological weapons begins with Secretary of Defense Melvin Laird in early 1969. In response to pressure for joint Congressional hearings on chemical and biological warfare, Secretary Laird and National Security Advisor Henry Kissinger along with the Joint Chiefs of Staff started a review of these weapons.

The first target was the Biological Warfare (BW) program. There were two reasons to eliminate this program. The first was political, eliminating the program could deflect growing protests over Vietnam. The second was budgetary. Under the administrations of President Kennedy and President Johnson, the BW budget had ballooned. This triggered a Kissinger directive to review CBW policies, programs, and operational concepts with the report due in September 1969.

Perhaps the most surprising stance was that of the Joint Chiefs of Staff, who were very receptive to the elimination of BW. Their opinion was that the weapons were ineffective and militarily useless, especially when compared to the U.S. nuclear arsenal. The Joint Chiefs made two demands, one was to continue defensive germ warfare research and the other was that they are allowed to maintain the U.S. chemical arsenal as a deterrent to the Soviet Union.

A September 1969 paper urged that the U.S. ratify the Geneva Protocol and elimination all of the U.S. BW programs. One of the major arguments in this paper was the point that a biological attack would likely inflict a great toll on civilian populations while remaining largely militarily ineffective.

Executive action on BW was followed by congressional action on chemical warfare (CW). In August 1969 the Senate passed an amendment to the Military Procurement Bill which unilaterally renounced the first use of chemical weapons. The Senate action also issued a moratorium on the acquisition of new chemical weapons as well as de-emphasizing the need for CW readiness. The bill passed 91-0, although some senators expressed reservations about the CW provisions.