The Geneva Protocol at 90, Part 1: Discovery of the dual-use dilemmaPosted: June 17, 2015
[Cross-posted from The Trench.]
Today, 17 June, the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of Warfare celebrates its 90th anniversary. Short as the document is, it laid the foundations for the 1972 Biological and Toxin Weapons Convention (BTWC) and the 1993 Chemical Weapons Convention (CWC). How critical that document was to disarmament—the total elimination of a given weapon category—the global community can only appreciate through the growing frustration with the lack of progress in the elimination of nuclear weapons. As the negotiators of the Geneva Protocol came to understand in 1925, without a global ban on use, no other weapon-related activities could legally be curtailed.
This three-part analysis retraces the origins of the Geneva Protocol and identifies its implications for disarmament.
Part 1 focusses on the discovery of the dual-use dilemma posed by toxic chemicals and the conclusions the negotiators drew from their new insights.
Part 2 analyses how the negotiators resolved the dual-use dilemma in meetings preparing the disarmament conference of the 1930s, and in the process came up with solutions that make up the pillars of disarmament today.
Part 3 reflects on how the Geneva Protocol experience may point to a tangible nuclear disarmament strategy in view of the failure of the 2015 review conference of the Nuclear Non-Proliferation Treaty (NPT) and the difficulties in reaching a satisfactory agreement with Iran to shed more transparency on its nuclear activities.
Chemical weapons in the early 1920s
In the 1920s, the presence of a well-developed chemical industry symbolised national puissance and could grant a power decisive military advantage. It partitioned the world, but in view of the recent total war, Europe in particular, in industrialised advanced and rural backward societies. After the Armistice in November 1918, many politicians resented chemical weapons (CW), but nevertheless felt that they could not leave their country unprepared for future chemical warfare. Furthermore, a widespread sense existed that smaller or lesser-developed societies should not be left vulnerable. Several European governments thus saw assistance in offensive and defensive aspects of chemical warfare, as well as the sale of chemicals, technologies and factories to such states as beneficial to their own national security. In other words, problematic to them was the risk of an imbalance as a consequence of one side acquiring a quasi CW monopoly, rather than the number of states possessing a chemical warfare capacity. Contrary to today’s attitudes, they pursued CW proliferation as a preferred security policy option. As a matter of interest, never was the percentage of independent states with an active offensive chemical warfare programme higher than on the eve of the 2nd World War.
There were some attempts to constrain the legitimacy of chemical warfare. Five prominent Allied powers signed the Treaty Between the Same Powers, in Relation to the Use of Submarines and Noxious Gases in Warfare in Washington on 6 February 1922. France, Great Britain and her Dominions (Australia, Canada, India, New Zealand en South Africa), Italy, Japan and the United States agreed under Article 5:
The use in war of asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices, having been justly condemned by the general opinion of the civilized world and a prohibition of such use having been declared in treaties to which a majority of the civilized Powers are parties.
The Signatory Powers, to the end that this prohibition shall be universally accepted as a part of international law binding alike the conscience and practice of nations, declare their assent to such prohibition, agree to be bound thereby as between themselves and invite all other civilized nations to adhere thereto.
Whereas negotiated by five states only, the treaty did have universal ambition. The Pan-American Congress, which held its 5th summit in Santiago from 25 March until 5 May 1923, adopted a resolution recommending adherence to it. However, universalisation of the Washington Treaty depended on its entry into force, which itself was contingent on ratification by the five negotiating parties. France objected for reasons unrelated to chemical warfare.
On 7 February 1923, five countries—Costa Rica, El Salvador, Guatemala, Honduras and Nicaragua—signed the Convention on the Limitation of Armaments. The agreement entered into force on 24 November 1924. While different in details, the language of Article V took its inspiration from Article 5 of the Washington Treaty:
The contracting parties consider that the use in warfare of asphyxiating gases, poisons, or similar substances as well as analogous liquids, materials or devices, is contrary to humanitarian principles and to international law, and obligate themselves by the present convention not to use said substances in time of war.
Its reach, however, was strictly regional.
So, by 1925 and despite the experiences of the 1st World War, no new text with universal reach came into to being to replace the by now defunct 1899 Hague Declaration (IV, 2) on asphyxiating gases.
An American proposal
In 1925, nothing constrained the strategic or commercial transfers of chemical warfare agents. Indeed, nothing constrained chemical warfare. In 1919 the British used their so-called M-device for the first time against Bolshevik forces during their intervention in the Russian civil war. Between 1921 and 1927 Spain deployed various chemical warfare agents against the Berber rebels during the Rif war in Spanish Morocco. It had set up its CW production capacity with foreign assistance. France’s intervention in this colonial war saw mustard agent bombing runs near Fez. There were also claims of aerial CW use in British-controlled territories, including Iraq and the north-western frontier in India.
In such an environment the dual-use issue could not and did not spring up. Dual-use questions only arise when the attempts to control a particular type of weapon-relevant technology confront the non-military commercial and scientific interests in such technology. Today the dual-use dilemma permeates many security debates. Perhaps it is nowhere more visible than in the intersection between the need for technology transfer controls and the right to development for peaceful purposes.
Diplomats and technical experts were rather unexpectedly confronted with the dual-use dilemma in 1925, because the question of CW control became reframed as one of arms trade regulation. During the first years of the 1920s, the League of Nations tackled many aspects of disarmament and arms control. Thus the Conference for the Supervision of the International Trade in Arms and Ammunition and in Implements of War opened in Geneva on 4 May 1925 and lasted until 17 June. The initial proposals concerned solely conventional weaponry. Expressing US concerns about the permissibility of chemical warfare, Senator Theodore H. Burton submitted an amendment at the start of the deliberations on 5 May:
The use in war of asphyxiating, poisonous or other gases and all analogous liquids, materials or devices has been justly condemned by the general opinion of the civilised world, and a prohibition of such use has been declared in treaties to which a majority of the civilised Powers are parties. The High Contracting Parties therefore agree absolutely to prohibit the export from their territories of any such asphyxiating, poisonous or other gases, and all analogous liquids, intended or designed for use in connection with operations of war.
He also advanced an alternative text that called for ‘adequate penalties, applicable in all places where such High Contracting Parties exercise jurisdiction or control’. In addition, the Polish representative General Casmir Sosnkowski proposed that ‘any decisions taken by the Conference concerning the materials used for chemical warfare should apply equally to the materials employed for bacteriological warfare’. The delegates responded favourably to both initiatives. Thus, for the first time diplomats accepted biological weapons (BW) as a separate arms category for inclusion in an international agreement.
First encounter with the dual-use dilemma
Senator Burton’s framing of CW control as an arms trade question raised immediate questions about non-military applications of toxic compounds. In his statement welcoming the US proposal, French delegate Colonel Réquin noted the need ‘to define, if possible, the characteristics of gases and chemicals which cannot be utilised in war, or of those which can be utilised both for warlike and non-warlike purposes’.
The conference’s Military, Naval and Air Technical Committee investigated the issue in detail, but was unable to overcome the problems posed by dual-use technologies. As stated by its rapporteur, General A. De Marinis Stendardo Di Ricigliano (Italy), the committee had sought expert opinion from notably bacteriological experts, physiologists and chemists:
The data and opinions of these scientists show conclusively that all the materials required for chemical warfare are in everyday use in peace industries.
Professor Mayer of the Collège de France says that ‘such substances are not by any means rare; the majority are common materials ordinarily manufactured and employed in large quantities for peace-time requirements, so that there is very little difference between the manufacture of pharmaceutical products and that of injurious substances used in war.’
All the chemical products which can be used in war, either as gas or in other forms, are more or less necessary in commerce, and it was pointed out during our discussions that a number of chemical products which were originally manufactured during the war solely for military purposes are now used in agriculture.
As the deleterious substances are in common use in peace-time, the chemical weapon is within the reach of any great industrial Power possessing chemical factories. Professor Zanetti, of the University of Columbia, New York, states that ‘the extreme facility with which these factories can be transformed, almost overnight, into factories for chemical warfare material introduces an element of fear and distrust towards a chemically powerful neighbour. This facility, indeed, gives a country with flourishing chemical industries as [sic] superiority if that country harbours hostile designs.’
Having proceeded thus far the Military Technical Committee, though desirous of making an immediate advance which might satisfy the conscience of the civilised world, had to recognise that the prohibition of the trade in chemical products is not practicable in the majority of cases, and that, even if it could be effected, it would prove of no avail against Powers possessing a highly developed chemical industry. In addition, although this argument is not of a technical character and is not mentioned in the Committee’s report, I should like to point out that such a prohibition would place non-producing countries in a dangerous position of inferiority as against producing countries. Your Committee was unanimous in thinking that this illusory method should be rejected and that the radical solution of the terrible problem would be found in a solemn and universal undertaking on the part of all the peoples of the world to regard chemical warfare as prohibited by the law of nations. […]
During the committee discussion of the report, Colonel Réquin pointed out that the delegations had paid particular attention to political considerations and expressed his opinion that from a technical viewpoint, the prohibition of the export of chemical and biological arms was impossible, because ‘all products used in chemical warfare were merely part of the economic necessities of a country’. At best, a provision might be included to ban the export of certain types of shell filled with CW agents, but the foreign sale of the chemical substances itself could never be forbidden.
Following the argument and in line with General De Marinis’ personal recommendation, the Military, Naval and Air Technical Committee adopted a compromise resolution, which prepared the ground for a ban on the employment of chemical warfare materials rather than on their international trade.
Chemical defence and protection
A variation of the same question was whether methods or implements for the defence against CW should also be subjected to export prohibitions. As noted by Hungarian delegate Zoltan de Baranyai, the Conference’s purpose was but a detail of the broad problem of the general reduction of armaments. Chemical warfare, however, posed a greater danger for which the antidote, namely protection against poisonous gases, had to be found. As a practical and effective step to render CW ineffective, he proposed to make public
all discoveries concerning the methods of defence against this warfare and of making these methods accessible to everyone, even non-combatants in all countries of the world. No one would continue to use a weapon against which his adversary possessed effective means of defending himself. The real danger for a nation was to go to sleep peacefully trusting to an international undertaking and to awake finding itself defenceless.
Here too, the proposition ran into difficulties because of the lack of a global ban on chemical warfare. Critics contended that regulating methods of defence might be construed as admitting to the possibility of chemical warfare, which in turn—as Colonel Réquin phrased it— would undermine the ‘moral and effective scope of the desired prohibition’. Hungary consequently withdrew the proposition, while reserving the right to present it at another occasion.
Principle of equality among sovereign states
As noted earlier, in the 1920s a single country possessing a disproportionate advantage in chemical warfare capacities posed a far greater security threat than the number of countries with an offensive CW programme. Equal access to CW technologies and the means for CW defence and protection informed national security policies. This core principle of equality conformed to the spirit of the League of Nations.
When submitting his amendment, Senator Burton was fully aware of the problem:
[…] The prohibition of exportation would make it possible for producing nations to supply themselves with these very barbarous implements of warfare while the non-producing nations would be denied the opportunity of doing so. I am sure it will be one of the main objects of this Conference to place the producing and non-producing countries, if possible, on the same footing, in accordance with the principle of equality.
Greece submitted to the conference’s General Committee that the principle of equal treatment between producing and non-producing countries alike ought to be the touchstone for the convention under consideration. The Turkish representative Colonel Mehmed Tevfik Bey, echoing some earlier remarks by his Brazilian colleague Admiral de Souza e Silva, summarised the security dilemma with specific reference to the American proposal to prohibit the transfer of chemical weaponry:
[…] A country with a developed chemical industry will, in time of war, always have a great advantage over an enemy which is not in an equally favourable position in this respect. It follows that if some States provide in time of peace for the possible use of gases in war, other States will be compelled to take measures to import them. And if, in the event of war, one party makes use of these substances and its use of them is definitely established, the opponent should also have the right to make free use of them, if only as a legitimate means of defence.
It is important that a prohibition to export should not place a producing State in a position of advantage as compared with a non-producing State. […]
Security concerns of possessors and non-possessors thus had to be addressed simultaneously. In view of the just-discovered dual-use dilemma, the US proposal to restrict the transfers of CW and CW-related materials could not meet this fundamental criterion.
Towards the ban on CW use
At the core of this security dilemma lay an absence of a general principle absolutely prohibiting CW use in war under all circumstances. In the words of Colonel Lowe, representative of the British Empire: ‘merely to prohibit the export of gas would not prevent its use’. Japan’s Ambassador Matsuda stated unequivocally that the ban on the export of such substances implied ‘the formal recognition that the prohibition to use asphyxiating or noxious gases, poisonous liquids, bacteria, and other similar methods, constitutes an integral part of International Law’. In his opinion, both the Military, Naval and Air Technical Committee and the Legal Committee therefore had to consider the implication carefully.
A trade ban notwithstanding, chemical warfare would have remained possible without violating international law. Many a country therefore felt unable to discontinue manufacturing chemical agents. General de Marinis stated flatly that in view of the impossibility to prohibit the trade in materials required for chemical warfare effectively and to sanction the violator, he would not cast his vote in favour of any such provision. On the contrary, Italy was fully prepared to support any initiative that would lead to the abolition of chemical warfare.
By June 1925, the negotiators had thus rejected the feasibility of a prohibition of the export of materials relating to chemical and biological warfare without a universal ban on their use. The General Rapporteurs submitted the following draft resolution:
Recognising that chemical and bacteriological warfare has been justly condemned by the opinion of the civilised world;
And desiring that the prohibition of the use of chemical and bacteriological arms in warfare should be unanimously accepted as a part of the international law binding the conscience and practice of nations;
Considering that the prohibition of the export of materials and devices destined for use in chemical and bacteriological warfare is in most cases practically impossible, and would be of no effect until all nations undertook to abstain from their use;
Is of opinion that every effort should be made to concluded as soon as possible a universal Convention prescribing this export prohibition and dealing with the problem of the prohibition of chemical bacteriological warfare in general.
A Swiss proposal for insertion in the Final Act, which was discussed together with the Drafting Committee’s proposition cited above, considered it ‘almost always impossible in practice to prohibit the export of these materials and implements of warfare’ and expressed the opinion that ‘every effort should be made to conclude as soon as possible a universal Convention codifying the aforementioned principle of international law and laying down definite rules as to its application’. Swiss delegate Colonel Loner recognised that the present conference had no mandate to codify new rules of international law, but he nonetheless believed that it was entitled to base its work on the accepted rules of international law. He pointed out that with respect to poisonous gases most nations participating at the Geneva meeting were party to the 1907 Hague Convention or had signed postwar agreements containing passages prohibiting CW use in war. (In 1925, there was still some hope that the Washington Treaty might yet enter into force.) Although some states were bound by none of the international treaties, he still concluded:
[…], seeing that [the prohibition of poison or poisoned weapons and of arms, projectiles or material calculated to cause unnecessary suffering] ‘is binding on the conscience and practice of nations’, […] we have before us, think [sic], everything required to enable us to proclaim the existence of a principle of international law.
In addition, it would appear that the Conference is not only competent to declare that this principle has binding force, but that it is bound to do so in some form or other. For the purposes of the Convention on the control of the trade in arms it is, to say the least of it, desirable that a precise meaning should be given to the expression the principal ‘arms, ammunition and implements of war, the use of which is prohibited by international law’, as employed in Article X of the draft Convention. It is obviously very undesirable to allow any serious doubt to exist as to the exact meaning of these terms. Granting that still other appliances may subsequently be included in the list of prohibited weapons and devices, it would appear to be expedient, if we are to ensure the uniform application of the Convention, to state clearly that chemical and bacteriological means of warfare are ‘prohibited means’ for the purposes of the present Convention.
This argument, which is based on the Convention itself, is reinforced by the general consideration that it is hardly possible for the Conference, after having had the question of chemical warfare submitted to it through the proposal of the United States, to break up without at least referring to and affirming once again the existing international engagements in this sphere. […] When it is remembered that a quarter of a century, indeed more, has elapsed since the prohibition of deleterious and poisonous gases in wartime was first brought before an international conference, I think you will agree that a statement of this kind is very necessary.
In the absence of the necessary instructions to deal with CW, the delegates on the Military, Naval and Air Technical Committee proposed to convene a special conference at which all states—especially those with a large CW production capacity—should be represented to address the issue of the prohibition of chemical and bacteriological warfare. Ultimately, they abandoned this course of action. Having touched upon the subject of CW, they felt that world opinion expected a firm statement condemning an odious mode of waging war. Thus was born the Geneva Protocol. (Original available from the documents base of the French Ministère des Affaires étrangères et du Développement international.)
The Geneva Protocol may be one of the most misunderstood and underrated international legal instruments that aim to control weaponry. It belongs to that part of the laws of war (humanitarian law) that proscribe the use of certain types of weaponry in combat. It is not an arms control or disarmament treaty that restricts the development, acquisition or stockpiling of the arms category concerned. Hence, it does not contain any verification or compliance enforcement paragraphs, not did it set up a body that could investigate allegations of chemical or biological weapon (CBW) use and enforce compliance. Instead, it has relied on the wisdom of the League of Nations, and after the 2nd World War, the United Nations to address violations.
It has been violated quite a few times, both before and after the 2nd World War. Never with regard to BW, but CW have repeatedly found their way onto the battlefields. Even as I am writing this blog contribution, the Syrian population is suffering the trauma of poison gas attacks and concerns exist that the Islamic State in Iraq and the Levant may yet come to use chlorine in a more systematic way.
Notwithstanding, from the middle of the 1960s onward, the UN General Assembly began adopting resolutions to strengthen the Geneva Protocol, which eventually gave way to the negotiation of the BTWC and CWC. It also established a foundation for the UN Secretary General to set up an independent mechanism to investigate alleged CBW use in the 1980s. Finally, the 1998 Rome Statute of the International Criminal Court adopted the Protocol’s wording on asphyxiating gases, thus elevating the use of toxicants as a method of warfare in both internal and international armed conflicts to a war crime. Today, the Geneva Protocol numbers 138 parties, and is therefore the fourth most successful weapon control agreement after the NPT, the CWC and the BTWC.
These achievements—the gradual strengthening of the norm against CBW use in any type of armed conflict and ultimately disarmament—grew out of insights gained during a mere seven weeks in 1925. The diplomats immediately acted upon the most important one: without an overarching ban on CBW use, there could not be any restriction of other types of activities relating to chemical or biological weapons.
In 1926, the League of Nations began with the preparations for a general disarmament treaty. While they had laid the foundation to develop further restrictions on CBW, delegates would now have to resolve the dual-use dilemma. By the end of 1932 they came up with a solution that would eventually become the cornerstone of both the BTWC and CWC. This will be the subject of the second part of this series on the Geneva Protocol.
‘A Treaty Between the Same Powers, in Relation to the Use of Submarines and Noxious Gases in Warfare’, American Journal of International Law, Vol. 16, No. 2, Supplement: Official Documents (April 1922), pp. 57–60.
‘Convention for the Limitation of Armaments’, American Journal of International Law, Vol. 17, No. 2, Supplement: Official Documents (April 1923), pp. 114–17.
J. Goldblat, The Problem of Chemical and Biological Warfare. Volume IV: CB Disarmament Negotiations 1920-1970 (SIPRI and Almqvist & Wiksell: Stockholm, 1971).
League of Nations, Proceedings of the Conference for the Supervision of the International Trade in Arms and Ammunition and in Implements of War. Held at Geneva, May 4th to June 17th, 1925, September 1925.
UN Office for Disarmament Affairs, Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, Status of the Treaty.
J. P. Zanders, ‘The CWC in the context of the 1925 Geneva debates ‘, Nonproliferation Review, vol. 3, no. 3 (Spring–Summer 1996), pp. 38–45.