For a number of years the Chemical Warfare Service of the U. S. Army has been conducting a propaganda in favor of all forms of chemical warfare. Although the reasons for it are not entirely clear the drive has been vigorously pushed, both from the rostrum and through the printed word. The lectures of chemical warfare officers have been well attended and their articles widely read. They uphold the humanity and, to some extent, the legality of gas warfare. Their facts, figures, and implications seem quite plausible to the majority of their hearers and readers. At the same time the audience usually feels a suspicion that “there is a catch in it somewhere.” These few paragraphs will endeavor to point out one or two of the “catches.”
Perhaps the worst fallacy with which we have to contend is that which throws all forms of chemical warfare under one head. It is most unwise to evaluate as to legality and humanity, the many parts as one great integral whole. “Chemical warfare” covers everything from physically harmless smoke screens to, so-called, “poison gas.” Only this latter is in controversy here—or elsewhere, virtually. It alone includes a large number of gases which vary in character over a wide range. “Poison” may not appear in the chemical formulas of all of them. The term “poison gas” will be used in these pages in the popular sense—as comprising all gases, liquids, and smokes which have, purposely, some injurious physical effect on human beings. “Asphyxiating or deleterious” are perhaps as comprehensive adjectives as any. Such phraseology is rather unwieldy, however.
The law, past, present, and future.—Before entering upon the legal phase of our subject one general proposition must be emphasized strongly: that a rule of international law does not require a treaty or convention to bring it into existence. Quite the contrary; few of its rules appear in rock-ribbed documents.
Bearing this point in mind then, let us investigate the status of international law in regard to poison gas: (1) in 1914, (2) at the present time, and (3) in the future. There seems scarcely a doubt that in 1914 poison gas was banned in warfare. It is not practicable to take the time and space in these paragraphs to bring out the truth of this. There is little chance that it will be challenged by any student of international law, however casual. There is nothing in any source of law that favors gas; there is any quantity of material that disfavors it. The use of any kind of poison gas in so-called civilized warfare prior to the World War was absolutely negligible; there had probably never been any use made of it at all. On one occasion in 1865 the Paraguayan dictator, Lopez, made plans to use gas against the allied river gunboats of Brazil, Uruguay, and the Argentine. The operation never took place, however. Admiral Dundonald proposed the use of gas against the defenders of Sevastopol in the Crimean War. The British, however, turned down the proposal as being one of outrageous barbarity. Few if any other cases are on record where gas warfare had even been contemplated.
Next, how does the law stand now? Has it changed in the last eighteen years as a result of the World War or any subsequent events? This is much more difficult to determine. We had during the war flagrant and increasingly widespread violations by the Germans of the law prohibiting the use of poison gas. These were followed finally by wholesale reprisals on the part of the Allies. Since the war the first legislation on the subject was the Five-Power Washington Treaty of 1922. This unmistakably confirmed the prohibition. The treaty has not yet become effective. Such agreements, nevertheless, have weight in international law. They show at least the sentiment on the subject of responsible experts. In this case these were the delegates of the five most powerful states. In 1925 followed the Geneva Protocol of the League of Nations which bars poison gas, among other things. It was signed by forty-one1 states and, at this writing, has been ratified by twenty-six.2 These twenty-six include such powers as France, Germany, Great Britain, and Italy. And when a state ratifies this treaty it is immediately bound by it in wars with other ratifying states. Perhaps a stronger confirmation of the gas prohibition is shown in public opinion. An aversion to poison gas as a weapon is still prevalent. It is held in some quarters that this feeling is unintelligent, that it has been fostered by false ideas. Even if this were the case the feeling nevertheless exists and is a powerful deterrent to a change in the law. It may be rash to say that the law is exactly the same in 1932 as it was in 1914. The present trend is against a change, however, and it is certainly reasonable to state that poison gas is still far from legal.
1 Forty-four if each part of the British Empire is counted separately.
2 Thirty-two if each part of the British Empire is counted separately.
It has been said that the United States is not at the present time bound by any treaty to abstain from the use of poison gas in war. This is true only technically and to a rather restricted degree. In connection with the law at the present time it might be of academic interest to American readers if we spend a moment outlining the position of our country from a strict treaty standpoint. It is quite true that the United States neither signed and ratified nor announced its adherence to the 1899 Hague Convention IV(2). This prohibits “the use of projectiles, the sole object of which is the diffusion of asphyxiating or deleterious gases.” We were the only one of the twenty-seven countries in the conference so to fail. The United States did, nevertheless, sign and ratify Convention II of 1899 and Convention IV of 1907 which forbid the employment of “poison or poisoned weapons.” For those inclined toward technicalities it might be pointed out that the latter phraseology is much more inclusive. The first convention would not bar shells comprising, say, high explosive in addition to the gas. All of these conventions are still in effect although including, admittedly, the weakening provisions of all Hague Conventions. It should be repeated here emphatically, however, that rules of international law on a particular subject can and do exist whether or not treaties or conventions exist. Wipe out all international commitments, some rule remains, whatever it may be. For instance, with the Hague Convention not in force due to belligerency of a non-contracting power, all law does not cease. The law simply reverts to whatever status it may have without the convention. In an almost prohibitive number of cases, incidentally, our present ratified rules express laws generally accepted long before. So the reversion is rarely perceptible.
When it comes to predicting the future we can, of course, only guess. It is perhaps not quite so impossible to estimate future developments of the international law of war as of most other affairs. Fundamental principles are always at hand as a basis for estimates. Now, the legality of weapons is governed almost entirely by the ratio of advantage gained to suffering inflicted. This, in fact, is the foundation of almost all the laws of war. Where the suffering is out of proportion to the results obtained by a given measure, a prohibition usually grows up and is generally accepted. This thesis immediately leads to the point already mentioned: that different gases must be considered differently. A large number of war gases have been manufactured up to the present time. Their character and efficacy as casualty producers are well known. Each could without difficulty be judged as to its humanity or inhumanity. By the time another war is waged, however, there will probably be quite different gases on hand. In our discussion, therefore, war gases will be considered by general types and classes only.
There are gases and gases. It is safe to say that future generations will not ban for humane reasons any gases which cause unconsciousness or even death, provided little or no suffering accompanies the casualty. We are familiar with several of these in civil life. Unfortunately, none of this nature now appears in the list of effective war gases. The future may show a different state of affairs, however. Tear gases would seem to be next in line. They are perhaps on the border line between those gases which cause suffering and those which do not. It is very likely that tear gases also will be permitted as being sufficiently humane. From tear gases we proceed down the scale through toxic smokes, chlorine, and phosgene to mustard gas and Lewisite. Let us take mustard gas as a clear-cut example of the very damaging chemicals. Here we have incontrovertible evidence of the fallacy of throwing all weapons of chemical warfare together— the fallacy of attempting to determine their legality and humanity from a grand average of all. Official statistics show that mustard gas caused more casualties in the World War than all the other chemical agents combined, so it is not unfair to take this gas as an example. Conversations with those who have suffered mustard gas burns, or who have been eyewitnesses of others thus incapacitated, leave no illusions as to the “humanity” of mustard gas—“suffering the tortures of the damned” as one witness so aptly depicted these unfortunate men. Weapons of this character will never be legal so long as our ideas of humane methods of warfare remain in anything like their present form. The memories of the first gas attack upon the Canadians and of the later mustard gas casualties will not down. They make the public realize that there is something wrong with the conception that “chemical warfare is humane.”
It is estimated, then, that the future may find some forms of gas legal and some illegal, if events should be allowed to take their own slow course. It has been pointed out, however, that various treaties are already being formulated which continue the prohibition against all kinds of gas. There would seem to be a strong possibility that all nations will not only agree on this but will also gladly obey all restrictions. In the development of gas warfare, defense will keep closer behind offense than in any other branch, perhaps. With a virtual stalemate in prospect, all may be only too glad to conform to anything which will eliminate the frightful nuisance and the many disagreeable features of masks and protective clothing. A most interesting fact connected with the World War lends very strong support to this proposition. In all the fighting between the Turks and the Allies no gas was used by either side. There was not even an agreement made. This fighting included the great campaigns of Mesopotamia, Gallipoli, and Palestine. In all those struggles neither side saw fit to commence using a weapon which promised little ultimate advantage. Each realized that a start by one side meant a start by the other which would, in turn, mean the great bother of defending against the gas. It must be admitted that this abstinence may have been aided by the fact that the Turks fought in a clean manner throughout the whole war. Their past reputation in other activities causes many to overlook this fact which is so pleasing to record.
Again, as to “the humaneness of gas warfare” a very fallacious argument has been advanced. The proponents of chemical warfare have taken the following idea as axiomatic: that the ratio of recoveries to casualties should be the measure of the humanity of a weapon. The present writer cannot accept this proposition for a moment and doubts whether many other persons can do so. By such reasoning a war waged with weapons which caused no deaths would be 100 per cent humane. But it might thus continue forever. Unlimited torture might be experienced by the wounded. Even the spreading of disease germs among the enemy’s armies would be quite permissible. “Anything would go,” provided the casualties recovered. It is very easy to see that there is a fallacy in this recoveries to casualties argument. There is, of course, no denying the fact that, all other things being equal, the most humane weapon is the one which causes the fewest deaths compared to the number of casualties. But in order to conclude a war too many other results must be achieved beside the temporary incapacitation of a large number of the enemy.
Let’s go slowly.—The conclusion is this: If the advocates of chemical warfare desire to assist the legalization of any weapons they should not claim all the virtues for all of their products. Tolerance toward opposing views will also be of assistance. It would be very desirable to have the laws of chemical warfare stabilized. Matters can be expedited by more modest claims in behalf of poison gas.
Editor’s Note.—For a discussion of this article the reader is referred to page 1049 of this issue.
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NOW, all maneuver implies, at least in theory, a counter maneuver (whether parade or riposte). This fact is used as an argument for the theory that “naval battles can only be conflicts of artillery. It is useless and therefore dangerous to try to maneuver.” We are to regard maneuver as dead and buried—to deny the Nile, Trafalgar, Lissa, and Tsushima. At the same time it must be acknowledged that, at sea, if a maneuver is to count at all towards victory, it must catch the enemy unprepared.
This unpreparedness may consist in (a) not knowing how to parry, (b) not daring to do so, (c) having actually no time to do so, (d) having morally no time (reflection + execution) to do so. Villeneuve, Persano, Rozhestvensky, even Brueys had actually time enough to parry. But they did not. This is “surprise,” and the factor of surprise is to be found in all decisive battles.—Baudry.