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Chemical Warfare in Vietnam: Legal or Illegal?
Published online by Cambridge University Press: 21 May 2009
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On March 24, 1965, the American Government recognized for the first time the use of chemical substances in Vietnam. This news provoked a storm of protest throughout the world, leading eventually to a bitter debate in the United Nations in 1966, which resulted in Resolution 2162 B (XXI) adopted on Dec. 5. This Resolution called “for strict observance by all States of the principles and objectives of the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, signed at Geneva on 17 June, 1925, and condemns all actions contrary to those objectives”.
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References
1. This first confirmation followed immediately upon the discovery by Ass. P. erporter Horst Faas, on March 22, that DM was used during military operations near Saigon.
White House, Pentagon, and State Dept. took unusually elaborate steps on March 23 and 24 to inform the public, obviously so as to prevent a public scandal. Press meetings were convened at which the harmless character of the agents used and their purpose (“riot control-like situations”) were stressed. The White House described even DM as “a rather standard type riot control agent” (which it definitely is not; see section 4 of this article); see Hersh, Seymour, “Chemical and Biological Warfare” ('68), pp. 168–170Google Scholar; for the press meetings see N.Y.T. 23–25 March, 1965.
2. Quoted by G. Bunn in an article taken from the Wisconsin Law Rev. 2 ('69) in “Chemical and Biological Warfare: US Policies and International Effects”, Hearings before the Subcommittee on National Security and Scientific Developments of the Committee on Foreign Affairs, U.S. Cong. 91st Cong., 1st. Sess. (Nov.–Dec. '69) p. 313.
3. Doc. S/6270 ('65); see also UN. Doc. A/P.V. 1484 ('66) p. 19; and a statement by Rear Admiral Lemos in Dec. '69 (note 46 below).
4. UN. Doc. A/C.1/Off. Rec. 1452 ('66) p. 158.
5. Both texts can be found in League of Nations Doc. A. 13.1925.IX ('25) pp. 76, 78, resp. 77, 79.
6. Bunn, G.. note 2 supra, p. 325.Google Scholar
7. See below, note 17.
8. League of Nations Doc. A.13.1925.IX, Verbatim Reports of the Conference for the Supervision of the International Trade in Arms and Ammunition and in the Implements of War, 2nd. Plenary Meeting: idem, General Commission, 1st. and 2nd. Meeting.
9. Idem, 7th Meeting.
10. Cook, R. E., “The Mist that Rolled Into the Trenches: Chemical Escalation in World War I”, 35 Bulletin of the Atomic Scientists (01 '71), pp. 34–38.Google Scholar
11. “Conference on the Limitation of Armaments; Nov. 12, 1921-Febr. 6, 1922”, (US Gov. Printing Office '22) p. 732.Google Scholar
12. Idem, p. 236.
13. For the text see a.o. O'Brien, W. V., “B. C. Warfare and the International Law of War”, LI Georgetown Law J. 1 (Fall '62), p. 63.Google Scholar
14. US Senate, Cong. Rec. 69th. Cong., 2nd. Sess. no. 4 (Dec. 9, '26) p. 137.
15. Ph. Noël-Baker in a letter addressed to the Editor of the N.Y.T. (published in the N.Y.T. on Dec. 12, '69); this statement would seem to be supported by the fact that at the Geneva Conference a Report prepared by the Temporary Mixed Commission for the Reduction of Armaments served as a basis for the discussions. This report explicitly classified tear gases and other irritants among the “chemical weapons”; see League of Nations, Doc. A.16.1924.DC ('24) part IV. No objection was voiced at the time to the prohibition of chemical warfare in the sense given it by the Temporary Mixed Commission.
16. “Memorandum on Chemical Warfare to the Preparatory Commission for the Disarmament Conference by the Delegation of the United Kingdom”. Cmd. 3747 (Geneva, No. 18, '30); see also the Parliamentary replies in Hansard (Commons) vol. 235 col. 1170 (Febr. 18, '30), and idem vol. 245 col. 878 (Nov. 24, '30).
17. League of Nations Doc. c.4.M., Series X, Minutes of the 6th Sess., pt. 2 ('31) pp. 311 ff.
18. See League of Nations Doc. 157 (1), and Series P.1933.IX.2 ('33).
19. This new definition does not even have any basis in American practice: all military Technical and Field Manuals in the field of CBW include irritants among the term “chemical weapons”; and the US Dictionary of Military Terms ('63) defines at p. 228 the term “war gas” as “any chemical agent (liquid, solid or vapor, used) in war, which produces poisonous or irritant effects on the human body”.
20. Doc. S/6270.
21. This is not to say that the General Assembly would not have aquired an enormous possibility for stimulating new legal developments by way of what is today indicated as its creation of “soft law”, as in the fields of de-colonization, racial non-discrimination, and Human Rights; see e.g. Falk, Richard A., “On the Quasi-Legislative Competence of the General Assembly”, 60 American Journal of International Law ('66), pp. 782–791.CrossRefGoogle Scholar
22. Such has very convincingly been argued among others by Mr. Blix, Legal Advisor to the Swedish Government, in a skillful (but unpublished) treatise on the “Swedish” Resolution.
23. E.g. FM 3–5 (“Chemical, Biological, and Radiological Operations”, '61), pp. 13–15Google Scholar; FM 21–41 (“Soldiers Handbook for Chemical and Biological Operations and Nuclear Warfare”, '63), pp. 23–24Google Scholar; TM 3–215 (“Military Chemistry and Chemical Agents”, '63), pp. 2–4Google Scholar; FM 101–40 (“Armed Forces Doctrine for Chemical and Biological Weapons Employment and Defense”, '64), pp. 3–4.Google Scholar
24. See Wirth, W., Hecht, G., Gloxhuber, Chr., “Toxicologie Fibel für Artzte, Apotheker, Naturwissenschaftler, Jwisten und Studierende” ('67), pp. 1–3.Google Scholar
25. TM 3–215 (“Military Chemistry and Chemical Agents”, '63), pp. 34, 32, 37 resp.Google Scholar; it should be noted that Edgewood Arsenal Technical Report EATR 4071 ('67) estimates the Let. for CS at 61.000 mg. min./mr.3. Even this figure, however, calculated for mildly active men, would come down to about 10.000 mg. for violently active men; see the comments of one of the most outstanding experts in this field, J. Perry Robinson (a former staff member at SIPRI), in a report written for the British Pugwash group (April, '70).
26. See TM 3–215, Chapter III. This classification, according to which vesicants like mustard gas is grouped together with “irritants” rather than “toxic substances”, is a traditional one; it can be found also much earlier, for instance in the report by the Temporary Mixed Commission of the League of Nations of 1924; see Doc. A.16.1924. IX, part IV.
27. UN Doc. A/C1/Off. Rec. 1452 ('66) p. 158.
28. Hansard, (Commons), vol. 795Google Scholar col. 18 (Febr. 2, '70); idem, vol. 795 col. 444 (Febr. 13, '70).
29. Porton Technical Paper no. 651 (Oct. 6, '58); on p. 3 it is explained: “Because of the severity of its effects and the delayed recovery which follows exposure, DM was seriously considered either alone or in mixture; it was eventually ruled by the Legal Branch of the War Office that in view of its poisonous nature (!) the use of DM must be proscribed in accordance with the provisions of the Geneva Protocol”.
30. These figures are based on several tests using the respiratory method, done in American Laboratories; for sources and comment see J. Perry Robinson in his report mentioned in note 25 supra.
31. See e.g. Jones, G.R.N., “A Closer Look at CS-Gas”, New Scientist (06 18, '71)Google Scholar; see also the Congressional Hearings mentioned in note 2 supra, p. 34.
32. The Report of the United Nations Secretary-General (UN Doc. A/7575, July 1, '69) states on p. 7 that “we recognize that both chemical and bacteriological (biological) agents are designed either as lethal agents, that is to say, agents which are intended to kill, or as incapacitating agents, that is to say, agents which are intended to cause disability.” The Report of the World Health Organization (WHO Doc. EB 45/18 Add. 1, Dec. 5, '69) gives similar definitions on p. 9: “A lethal agent is intended to cause death when man is exposed to concentrations well within the capability of delivery for military purposes”; “an incapacitating agent is one intended to cause temporary disease or to induce temporary mental or physical disability, the duration of which greatly exceeds the period of exposure”; it is noteworthy that this report is not even consistent in this kind of definition, since it defines harassing (or irritant) agents according to alleged inherent capabilities (which should be called very remarkable in view of the quality of the sponsor, which should be deemed to have expert knowledge in this field in particular); it reads: “A harassing agent is one capable of causing a rapid disablement that lasts for little longer than the period of exposure”.
33. E.g. Rose, Hilary & Stetler, R., “What Gas did in Deny”, Society (Sept. 25, '69), pp. 465–466Google Scholar; Prof. F. Kahn and Huguenard have provided daring reports about severe neuro-muscular symptoms and difficulties in breathing among French students in Paris in May '68; see also Bodenheimer, T. S. & Rose, L., “MACE”Google Scholar, Survival (Aug. '68); many relevant data in this connection were included in several reports presented at an international scientific meeting on CBW in Paris (Dec. 12. '70) held in the buildings of l'Université d'Orsay.
34. See Weigand, D. A. in 134 Mil. Med. ('69) pp. 437 ff.Google Scholar
35. Kahn, F., “L'emploi des gaz par les Americains au Vietnam”, in “Les Massacres, La guerre chimique en Asie du sud-est” (ed. Maspero. '70), pp. 73–80.Google Scholar
36. Striker, G. E. et al. , Edgewood Arsenal Technical Report EATR 4071 ('67)Google Scholar; for comment see J. Perry Robinson, note 25 supra.
37. Reuter dispatch from Saigon, , 01 12, '66.Google Scholar
38. From the beginning of chemical warfare in Vietnam, the NLF and later the PRG have provided regular information on the use and effects of chemicals on the Vietnamese civil population; it seems noteworthy that although most of these reports have been denied as “communist propaganda” by official American circles, through the years many facts and data from such reports have increasingly been affirmed by official spokesmen as being correct (which can be derived from several Hearings on the subject since 1969).
39. Published on Oct. 20, '67. Another US captain has been reported as saying: “What the hell, by pumping gas down there we can knock out groundfire, so that lets us get closer on the ground and from the air to kill all the more of the enemy. If women and children are down there at the time, it will be no better for them than it is now”; A.P. report from Saigon, the Chicago Tribune, March 3, '65.
Prof. Kahn, who visited Vietnam, personnally saw the lethal effects of irritants under such circumstances, as reported e.g. by Pavett, D. in The Listener (05 16, '68) p. 624.Google Scholar
40. This weapon consists of cannisters containing sets of small bombs, the mantles of which are filled with bullets or needles. Being dropped by airplanes they are dispersed over an area the size of which depends on the altitude of the plane (usually some hundred square metres). Having reached the ground they explode, thus dispersing hundreds of thousands of projectiles over the area. Being hardly capable of penetrating into wood and being entirely incapable of destroying stone or steel constructions, they have especially been developed as “anti-human bombs”. To aggravate their effect, new types containing a delayed-ignition mechanism or containing plastic needles have been developed; the first type explodes a long time after having been dropped so it can kill passers-by who are entirely unconscious of the danger; the second type prevents medical operations, plastic needles being invisible on the X-ray screen.
40a. E.g. the “Tonkin Bay” affair which alledgedly led to the bombardments on North Vietnam; see Verwey, W. D. “Bombing on the North after Tonkin and Pleiku: Reprisals”, Revue belge de droit international 1969, pp. 460–480.Google Scholar
41. Congressional Hearings, note 2 supra, p. 96.
42. Idem, p. 7.
43. N.Y.T. May 8, 12, '66; idem March 26, '67; on Operation Birmingham see Hartmann, K., “Chemical Warfare '66–'67”Google Scholar, Wehrkunde 1 ('67); in the case of the first acknowledged combined attack by helicopters dropping CS-grenades and B-52', an official has been reported as saying: “The purpose of the gas attack was to force the VC troops to the surface where they would be vulnerable to the fragmentation effects of the bomb bursts”; quoted in S. Hersh, note 1 supra, p. 36.
44. Prof. M. Meselson testifying before the US Senate For. Relations Comm. on April 30, '69, quoted in 223 Nature ('69), p. 6; similar data have been given by Congressman R. Kastenmeyer, in the Hearings of 1969, note 2 supra, p. 138.
45. Idem Congr. Hearings, p. 241.
46. For the Government Rear Admiral Lemos repeated the adverse official opinion unconditionally in Dec. '69: “the riot control agent, CS, has become a lifesaving part of military operations in Vietnam”; idem, p. 228.
47. See note 32 supra.
48. See note 33 supra.
49. On DM see W. Wirth et al., Toxicologie Fibel, pp. 81, 164; on CN several reports exist concerning lethal effects at high concentrations among criminals fortified in close quarters (Naeve, '60; Stein & Kirwan, '64); the victims died within 24 hours from lung-oedema.
50. Letter by Dr. Alje Vennema to Prof. Egbert W. Pfeiffer (University of Montana), dated Nov. 23, '67; according to Vennema's description of the symptoms, about which the present author talked with him later, there is no doubt that the gas in question was DM.
51. Edgewood Arsenal Technical Report 4071 (Jan. '67) warns in connection to CS that “the present study gives evidence that lesions that might cause casualties in an active human population occur at lower doses than would be expected from the dosemortality curve.”
52. Also CN has been shown to be co-carcinogenic in mice. The same warning is expressed in the WHO-report as to the supposed teratogenic (embryotoxic) property of CS. In view of the shocking reports concerning the taratogenic activity of certain herbicides used in Vietnam (in particular Orange, a mixture from 2,4-D and 2,4,5-T) any further use of CS would seem to constitute an irresponsible risk for this reason alone, until further research into these aspects has been accomplished.
53. In many countries cases of eye-damage following use of private pistols loaded with CN-cartridges have been reported; in the scientific literature also several reports are known on similar accidents which have occurred during military testing; see also Bodenheimer, T. S. & Rose, L. “MACE”, Survival (08 '68) p. 253.Google Scholar
54. Edgewood Arsenal Technical Report EATR 4057 ('67), “The Effects of Ther mally-Generated CS Aerosols on Human Skin”; Edgewood Arsenal Technical Report EATR 4219 ('69), “Skin Sensitation Potential of the Riot Control Agents CA, DM, CN, and CS in Guinea Pigs”; see also Weigand, D. A. in 134 Mil. Med. ('69), pp. 437 ff.Google Scholar
55. See Kalman, S. M., “Drugs as Weapons” (Seminar, Dept. of Biochemistry, U.C. Berkeley, 05 28, '70).Google Scholar
56. All relevant data in this connection can be derived from the official historical descriptions on these conflicts. An excellent compilation of such sources can be found in the forthcoming Part I of the CBW study of SIPRI (Swedish International Peace Research Institute), written by Julian Perry Robinson: on the phenomenon of excalation as a particular feature of chemical weapons one is referred further to a forthcoming book (to be published shortly) by the present author on the polemological and legal aspects of chemical warfare.
57. On reports concerning the use of CNS (a mixture of chloroform and chloropicrine) see the Washington Daily News, Jan. 1, '66, and l'Express, March 7–13, '66; on the alleged use of BZ the first report stems from the Canadian reporter Patrick Watson (Canad. Broadcasting, Jan. 1, '66), another report stems from Darcourt, Pierre, “Le Temps de Massacres”, l'Express, 03 14–20, '66Google Scholar; see also N.Y.T. May 10,11, '66.
58. General J. H. Rothshild has pleaded on several occasions for the use of persistant toxic chemicals in Vietnam; in general, he advocates such use during anti-guerilla operations in his book “Tomorrow's Weapons” ('64) pp. 141–142Google Scholar; the same has been done by Brown, Major F. J., “Chemical Warfare, A Study in Restraints” '68), p. 310.Google Scholar
The grave danger of escalation is indicated in particular by the fact that such decisions are often taken by military commanders in the field, who at the moment of their decision can not always see the importance and eventual consqeuences of their here-and-now decision. Field Manual 101–40 of 1964 states on p. 3: “Commanders are currently authorized to use certain chemical agents such as flame, incendiaries, smoke, riot control agents, and defoliants”.
This is exactly what has happened in Vietnam. White House spokesmen at the time of the initiation of chemical warfare stressed that political leaders were not informed in advance. This was affirmed during the Congressional Hearings in 1969; see e.g. Kastenmeyer, on p. 149.Google Scholar
59. The non-use of any chemical weapon by the Americans during the second World War due largely to the resistance felt in many echelons of the American Army to then-use whatsoever, thus preventing the necessary logistical preparations. Although it has often been contended that the use of chemicals in the Pacific could have saved many lifes—which can indeed hardly be denied—this attitude has helped to prevent the second World War from becoming a large-scale chemical war; this in view of the fact that all belligerents had more or less prepared themselves for all eventualities, and in view of the fact that Germany at least had made plans for the use of nerve gases.
60. Res. 2444 (XXIII), Dec. 19, '68; this Resolution was prepared by Res. XXVIII of the XXth Conference of the International Red Cross at Vienna in 1965.