termed "incapacitating." The State Department definition of riot control agents is limited by stipulating that these agents are those "widely used for domestic law enforcement purposes." 79

Thus, there are or could be agents which exercise the effects of neither "incapacitating" agents nor "riot control" agents as defined by the United States. These would be gases that induce symptoms lasting only a short time after exposure (and therefore would not be termed "incapacitating"), but which "are, in fact, quite unsuited for police use," or which are, in fact, not "widely used for domestic law enforcement" (and therefore would not fit the U.S. definition of a "riot control agents").80 Consequently, using the definitions of the two general general classes of chemical weapons which U.S. policy has respectively renounced and permitted, these weapons evidently would not come within the scope of either category.

This analysis of the categories of gases affected by the President's policy announcement gives rise to certain questions: Is it significant that this class of gases would be available to the United States for use in war under the terms of President Nixon's statement of policy? Are there militarily significant gases in this class now or could there be as a result of future technological developments?

Another important question is whether this class of gases, that is, those having effects of short duration but not widely used for police purposes, would be considered by the United States as falling inside or outside the terms of the Geneva Protocol?

Further questions arise from the U.S. definition of "riot control agents." Will any gas have to meet the test of being "widely used by governments for domestic law enforcement purposes" before the United States will initiate its use in war? Or to phrase it another way, will the United States initiate the use in war of any chemical agents having transient effects that are unsuited for police purposes or in fact have not been widely used for these purposes?

E. TRENDS IN U.S. POLICY AND FRACTICE: A SUMMARY

From the foregoing review of international negotiations and the U.S. role therein, of U.S. policy statements, and of the record of actual U.S. practice, it is evident that U.S. policy and practice with regard to the use of tear gas have undergone a significant evolution in a number of ways. First, in regard to the Geneva Protocol, U.S. policy has evolved over the past 40-odd years in three distinct stages. The earliest period, which lasted more than three decades, encompasses U.S. failure to ratify the protocol followed by an attitude of almost

7 It was reported in January 1970 that the United States also had defined the term "chemical warefare," so that it would exclude the use of certain chemical weapons, that is, tear gases and herbicides. The Washington Post reported that the definition was issued by the Pentagon "in response to a query" from the newspaper. and that the definition had been approved by the National Security Council (NSC). According to the report. "chemical warfare" is "the employment of chemical agents which result in prolonged incapacitation or death in contrast to the temporary nature of riot control agents (CS) whose effects are not lasting and dissipate quickly." (See Washington Post, January 31, 1970: A5).

If the definition of chemical warfare as set forth in this news report can be considered in the context of official U.S. policy, certain points can be raised. Since this definition includes only the use of lethal or "prolonged" incapacitating agents, it would appear that the United States does not apply the term in the

same sense as most sources.

For instance, the U.N. Secretary-General's report defined "chemical agents of warfare" as "chemical substances, whether gaseous, liquid, or solid, which might be employed because of their direct toxic effects on man, plants, and animals." (Report of the Secretary-General on Chemical and Bacteriological (Biological) Weapons and the Effects of their Possible Use, op. cit., p. 6). The WHO report uses a definition which is virtually the same, and it is obvious that these sources include tear gas and herbicides in the term "chemical agents of warfare.'

80 Health Effects of Possible Use of Chemical and Biological Weapons, op. cit., Annex I, p. 21.

complete indifference. During the second stage, it was stressed that the United States would support the "principles and objectives" of the protocol, with no indication of any move toward formal ratification.

The final stage in U.S. policy toward the protocol is marked by the President's recent announcement, in which the United States proclaims its intention to submit the treaty to the Senate for approval of ratification. This latter phase is qualified by the declared intention of the United States to reserve its ratification in such a way as to permit the use of lethal chemical weapons in retaliation only. The question of ratification of the protocol by the United States is expected to raise the issue whether the United States will consider the terms of the protocol binding in regard to the use of tear gases, herbicides, or other temporarily disabling chemical weapons.

Second, one can mark a certain development in the general policy and practice of the United States in regard to the use in war of tear and temporarily disabling gases. In the early history of chemical warfare, the record of actual U.S. practice shows that no tear gas was employed, and U.S. policy declarations on the particular issue of using tear gas were vague or nonexistent. This abstinence in practice and vagueness in declared policy have evolved to a stage in which not only are these types of chemical agents used in war, but also their use is officially justified in carefully delineated terms.

During this period of evolution, United States spokesmen have used language in which they have increasingly used the terms "gas warfare" and "chemical warfare" to be synonymous with the use of chemical weapons in war that have either lethal or prolonged incapacitating effects. The President's declaration of policy of November 1969 is applied to "incapacitating" in addition to "lethal" chemical agents. It excludes so-called "riot control" agents, a term which is applied to tear gases and other gases having only temporary or non-lasting effects and which are widely used for domestic law enforcement purposes. The definitions which the United States has applied to such terms as "chemical warfare," "incapacitating agents," and "riot control agents" are not necessarily accepted by other countries. In fact in some instances the terms used by the United States appear to be in conflict with those used by other governments and international organizations. In the justifications which the United States has made for the military application of tear gas in Vietnam, there is evidence of an evolution in the purposes for which they are employed. Initially, Secretary Rusk and other spokesmen of the executive branch described the operations as "riot control types of problems," that is, situations in which innocent or friendly personnel were intermingled with the enemy. Secretary Rusk avowed that tear gas was not intended for "ordinary military operations."

The current stage is one in which, as Admiral Lemos described it, tear gas is employed as a "normal component of combat power.' While the use of tear gas was previously justified on the grounds that it saved innocent lives, it is now conceded that it can contribute to enemy casualties. Although this application is denied as deliberate, such use is justified on the grounds that it enables American military operations to be carried out more efficiently; that is, with minimum. losses for both American and allied forces. In other words, tear gas is

now considered a normal combat weapon which is used primarily like other combat weapons to destroy the enemy or to save American lives. The "riot control" rationale has faded into the background, although the term is still used.

To some extent the course adopted by the American Executive in seeking ratification of the Geneva Protocol, accompanied by a new statement of policy regarding the use of chemical and biological weapons, is one of compromise. It is an attempt to reap the political advantages of the adoption of a new policy which includes ratification of the Geneva Protocol and at the same time retain for the United States a category of weapons which it considers to be militarily advantageous. In short, it appears that a trade-off is involved. Certain sacrifices are made in terms of both political and military benefit, but at the same time the policy seeks to maximize other political and military benefits. Whether this mix of political and military advantage and disadvantage will be accepted or changed in some way by the U.S. Senate, how the Senate will shape its final decision, and how the resulting product will be received by the other parties to the Geneva Protocol-all at this moment are questions still to be answered.

APPENDIX

RECORDED VOTE BY THE U.N. GENERAL ASSEMBLY ON THE SWEDISH RESOLUTION

DECEMBER 16, 1969

In favour. Afghanistan, Algeria, Argentina, Brazil, Bulgaria, Burma, Burundi, Byelorussian Soviet Socialist Republic, Cameroon, Central African Republic, Ceylon, Chad, Colombia, Congo (Brazzaville), Congo (Democratic Republic), Costa Rica, Cuba, Cyprus, Czechoslovakia, Dahomey, Dominican Republic, Ecuador, Equatorial Guinea, Ethiopia, Finland, Gabon, Ghana, Guatemala, Guinea, Guyana, Haiti, Honduras, Hungary, India, Indonesia, Iran, Iraq, Ireland, Ivory Coast, Jamaica, Jordan, Kenya, Kuwait, Lebanon, Lesotho, Libya, Maldives, Mali, Mauritania, Mauritius, Mexico, Mongolia, Morocco, Nepal, Niger, Nigeria, Pakistan, Panama, Peru, Poland, Romania, Rwanda, Saudi Arabia, Senegal, Somalia, Southern Yemen, Spain, Sudan, Sweden, Syria, Togo, Trinidad and Tobago, Uganda, Ukrainian Soviet Socialist Republic, Union of Soviet Socialist Republics, United Arab Republic, United Republic of Tanzania, Upper Volta, Yemen, and Yugoslavia.

Against.-Australia, Portugal, United States of America.

Abstaining.-Austria, Belgium, Bolivia, Canada, Chile, China, Denmark, El Salvador, France, Greece, Iceland, Israel, Italy, Japan, Laos, Liberia, Luxembourg, Madagascar, Malawi, Malaysia, Netherlands, New Zealand, Nicaragua, Norway, Paraguay, Philippines, Sierra Leone, Singapore, South Africa, Swaziland, Thailand, Tunisia, Turkey, United Kingdom of Great Britain and Northern Ireland, Uruguay, and Venezuela

Draft resolution A was adopted by 80 votes to 3, with 36 abstentions. [Resolution 2603 A (XXIV)].*

EXCERPT FROM SENATE DEBATE ON THE GENEVA PROTOCOL

Mr. REED of Pennsylvania. “*** Let me call attention to the language of this treaty. As I have said it includes tear gases. The tear gases that were used in the last war, and that are still being made for our Army, are gases which by some strange action cause a convulsive closing of the eyelids, and in a strong attack, they will cause a redness and inflammation of the surface of the eyeball, but their

Subsequently the representative of Cambodia informed the Secretariat that had he been present he would have voted in favour.

principal effect is to close up the eyelids. If you had been subjected to an attack by tear gas and knew that some one was approaching to stab you with a knife, you could not force your eyelids open. It has a curious effect. It wears off after a little while, but while the individual is subject to its action, he is as harmless as a baby. That has been recognized since the war, and that gas has been adopted by every intelligent police force in the United States, and at this minute the police of this city, and of every other city in the United States of any consequence, are prepared to use tear gas on any culprits who put up a serious defense against arrest.' Mr. BORAH. "This treaty would not interfere with that."

Mr. REED of Pennsylvania. "This treaty would stop us from using that gas against the next savage race with which we find ourselves in war, and would compel us to blow them up, or stab them with bayonets, or riddle them and sprinkle them with shrapnel, or puncture them with machine-gun bullets, instead of blinding them for an hour or so until we could disarm them. That is the 'humanity' that is attempted to be worked out by the Geneva protocol.

"Let us consider, as well as humans can, the near future from a military standpoint. We all know that the likelihood of war with one of the major powers of the world is to-day very small. The great military powers of the world are in a condition of peace and thorough amity with the United States. There is no serious likelihood of war with any of them. But we are having diplomatic friction from time to time with countries that are not classed as the great military powers. I need not single any one out, but if each of us were to try to estimate what was the most probable next war, I feel sure that we would point to one of the countries that is not considered to-day a great military power.

"Are we, then, to go against an inferior antagonist, with all the abundance of artillery that the World War has left us, to blow out of existence a lot of peasants who scarcely know what the war is about? Or are we to take advantage of this great chemical opportunity which we, as a manufacturing nation, have open to us? Would it not be more merciful, assuming that we were at war with some Central American country, to win our battles by the temporary disabling of our enemies than to blow them all over their cactus plants, and put them in the black square of the shell victims? That is a plain statement of the alternatives that confront us." Mr. BORAH. "If you put them to sleep for a limited period, unless you took them prisoners and held them, they would be ready for battle the next day, would they not?"

Mr. REED of Pennsylvania. "It is to be assumed that if we captured them, we would not give them up again to start war the next day.” ***

(Congressional Record, Dec. 9, 1926. p. 150.)