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The History of The Red Line That America Was The Last Nation In The World To Sign Up To.

Dwight-D-Eisenhower-aircraft-carrier-300x199    As the world continues to hold its breath and Obama and his cohorts desperately bend ears about the crossing of red lines, the ordinary folk of Syria fortunate enough to still have them ,sleep uneasily in their beds waiting for the humanitarian missiles from the West.

So what is this ‘red line’ that Obama correctly pointed out was drawn, not by him, but by the world? When did that happen? And who exactly signed up to it? Given the fervour with which Obama has been pounding his pulpit you could be forgiven for thinking the US were one of the first countries to put their name to it. If so you would be wrong. The Geneva Protocol , to give the ‘red line’ its official title, came into being in 1925 but the US didn’t sign up to it until 50 years later in 1975 and then only with the reservation that the Protocol would cease to be binding upon them if “any enemy state does not observe the prohibitions of the protocol”. What this means, ironically, for the current situation is that now that Obama is claiming that Assad has failed to observe the prohibitions on chemical weapons – Syria having signed up to it in 1968 – the protocol is no longer binding on the US and thus they could ‘legitimately’ use them against him should they so choose.

136722_600     Don’t get me wrong, I’m not suggesting here that the United States would resort to such a foolish and reckless act. I merely make the point to further illustrate the depth of hypocrisy which underlies Obama’s argument for military action against Syria and the US position generally on the use of chemical weapons.  And there is, of course, a further international agreement in force which militates against the use of chemical weapons, the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction  which the US signed in 1993. This agreement is administered by the Organisation for the Prohibition of Chemical Weapons (OPCW), which is an independent organization based in the Hague, in the Netherlands. This convention augments the Geneva Protocol of 1925 and includes extensive verification measures such as the on-site inspections we’ve seen in Syria and previously in Iraq. There are currently 189 signatories to this agreement.

Back in 1969, before the US had signed up to the Geneva Protocol and in the midst of their involvement in the conflict in Vietnam, Russia accused them of war crimes because of their use of Agent Orange. The US strongly denied this claiming Agent Orange was a herbicide, not a chemical weapon and anyway they were not bound by the Geneva Protocol. Nonetheless, there were many in America who were very concerned about this and felt that the fact they were not a signatory to the protocol did not put them above the law. Professor George Bunn, writing in the Wisconsin Law Review, made the case for signing up to the Geneva Protocol and in so doing provided a  detailed history of the world’s ‘red line’ which has provided much of the factual content of this post.

no-war       The first treaty dealing specifically with poison gas was the 1899 Hague Gas Declaration which contained an agreement “to abstain from the use of projectiles the sole object of which is the diffusion of asphyxiating or deleterious gases.”  Twenty-seven states became parties to this declaration, including all participants in the Hague conference except the United States. The American representative, Navy Captain Alfred T. Mahan, refused to agree because gas projectiles were not yet in practical use or fully developed and because he thought gas warfare was just as humane as other forms of warfare. Unfortunately, the language of this declaration was so limited that it had little if any effect on gas warfare during the First World War. In the first major poison gas attack of that War, at Ypres in 1915, the chlorine gas used by the Germans came from large cylinders, and not the “projectiles” described in the declaration. The French used projectiles containing tear gas, which they said was not an “asphyxiating or deleterious” gas within the meaning of the declaration. Similarly, a projectile used by Germany did not have “as its sole object” the diffusion of poison gas because, the Germans argued, it was also used for shrapnel.  With these and other arguments, the existing limitations on poison gas were brushed aside in the First World War.

Then came the  1919 Versailles Treaty. This treaty contained the following provision:

“The use of asphyxiating, poisonous, or other gases and of analogous liquids, materials or devices being prohibited, their manufacture and importation are strictly forbidden in Germany.”

While the United States failed to give its consent to the ratification of the Versailles Treaty primarily because of its provisions establishing a League of Nations, the quoted language was incorporated by reference in the 1921 Treaty of Berlin between the United States and Germany. But the United States regarded it as only applicable to Germany.Then in 1922 came The Washington Treaty on Submarines and Noxious Gases. Drawing on the language of former peace treaties, the Washington Treaty stated:

“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, and agree to be bound thereby between themselves and invite all other civilized nations to adhere thereto.’

Iraq-vs-Syria-WMD     This provision, being drawn up at a conference in Washington,  was based upon a United States proposal and was adopted at the urging of Secretary of State Hughes. Its been said that in order to help achieve later Senate consent, Senator Elihu Root was asked to represent the United States at this conference. In addition Secretary Hughes took pains to have an advisory committee of prominent citizens appointed by President Harding and attempted to mobilize popular opinion behind the treaty. As a result, the Senate gave its consent without a single dissenting vote. French ratification was necessary, however, and sadly  the treaty failed because of French objections to its provisions on submarines even though there was consensus on the issue of chemical weapons.

Three years later in 1925 The Geneva Protocol,  of which we now hear so much from Obama, was born. This protocol added to the poison gas prohibition of the Washington Treaty an additional ban on bacteriological warfare. The relevant wording reads :-

“Whereas the use of asphyxiating, poisonous or other gases, and of all analogous liquids, materials or devices, has been justly condemned by the general opinion of the civilized world; and

Whereas the prohibition of such use has been declared in Treaties to which the majority of Powers of the world are Parties; and

To the end that this prohibition shall be universally accepted as part of International Law, binding alike the conscience and the practice of nations:

Declare: That the High Contracting Parties, so far as they are not already Parties to Treaties prohibiting such use, accept this prohibition, agree to extend this prohibition to the use of bacteriological methods of warfare and agree to be bound as between themselves according to the terms of this declaration.”

download         So the Geneva Protocol was adopted at the insistence of the United States. However, probably because of the ease with which the Washington Treaty had sailed through the Senate, Secretary of State Kellogg did not make the effort to gain the same support for the Geneva Protocol that Secretary Hughes had made earlier for the Washington Treaty.  Although Congressman Burton was the head of the United States delegation, no Senator was included. No advisory committee was enlisted and as a result the Army’s Chemical Warfare Service was not prevented from mobilizing opposition to the protocol.

The Chemical Warfare Service duly enlisted  the help and support of the American Legion, the Veterans of Foreign Wars, the American Chemical Society, and the chemical industry itself. Senator Wadsworth, Chairman of the Military Affairs Committee, led the Senate opponents of the protocol and argued that it would be torn up in time of war, once more echoing the US view of chemical weapons that existed back at the 1899 Hague convention,  that poison gas was in any event more humane than many other weapons.

Senator Borah, Chairman of the Senate Foreign Relations Committee, finally withdrew the treaty from Senate consideration, presumably because he and the Senate majority leader had concluded that they did not have the votes.

The Geneva Protocol , therefore, came into force without the United States signing up to it, despite the fact it was their insistence on it that led to others doing so. An America emerges from this as a nation that sees itself to be above international law; a nation that now holds a huge arsenal of weapons of mass destruction yet doggedly persists in denying those weapons to other states; a nation with the military potential to commit massive crimes against humanity yet refuses to subject itself to the International Criminal Court. If such a nation were characteristically peaceful and non-interventionist this wouldn’t be such a problem, but the US is quite the opposite despite the sickly sweet moral rhetoric that drips from its jaws.

as                                                                              By the time the US was heavily involved in the Vietnam War the Geneva Protocol had over 60 adherents, every member of NATO except the United States, and all Warsaw Pact members, including the Soviet Union, were parties. Indeed, all European states except Albania joined the protocol. Of the major industrial countries, only Japan and the United States had failed to become parties by the end of the 1960s.

Many people have credited  the Geneva Protocol with a major role in preventing gas warfare in Europe during World War 11. It came to symbolise the abhorrence for gas which even military men felt after World War I and this abhorrence contributed to restraints imposed by both civilian and military leaders.

Retaliation was the primary sanction acting to deter the use of poison gas and germs and so the protocol established the norm of conduct. Unlike World War I, no gas warfare occurred among the industrial states of Europe during World War 11 on the battlefield at least. It could and has been argued that Hitler’s gassing of millions of Jews constitutes such conduct.

So at the time of the Vietnam War when they were using Agent Orange and napalm as weapons,  the United States was not a party to any treaty which expressly prohibited it from engaging  in gas or  bacteriological warfare.  However the principles of the protocol appear to form a rule of customary international law applicable even to the United States at that time.

download (1)         Custom is the older and the original source of international law. . . . International jurists speak of a custom when a clear and continuous habit of doing certain actions has grown up under the aegis of the conviction that these actions are, according to international law, obligatory and right.

To determine the existence of a customary rule of international law, state practice with respect to the use of poison gas and biological weapons in war should be examined. Where that practice indicates non-use, the question must still be answered whether this was based on a belief that a rule of international law existed even for those not parties to the protocol. The then practice and official views of the United States and Japan appear to be most relevant as they were the only major industrial states which had not, at that time, ratified the protocol.

The United States did not engage in gas warfare during World War II although it could have been to their military advantage in the Pacific in 1945. At the beginning of United States’ participation in World War II, the State Department became concerned that the Japanese, not being parties to the Geneva Protocol, would engage in chemical warfare .

The British, French, Italian, and German governments had exchanged pledges to observe the protocol; the British had made the same offer to Japan, although it replied evasively. The US  State Department proposed that a declaration be made to Japan that the United States would comply with the protocol if others did. Secretary of War Stimson, however, opposed any acceptance of the protocol by declaration. In February of 1942 he urged that the US “keep our mouths shut,” apparently because he was concerned about their preparedness to retaliate if the Japanese should use gas.

0907-syria-war-protests.jpg_full_380      In June 1942, President Roosevelt was persuaded by the Chinese to issue a statement concerning reported Japanese use of noxious gases in China. Without referring to the protocol, Roosevelt threatened “retaliation in kind and in full measure” if Japan persisted “in this inhumane form of warfare” against China or any other American ally.

A year later the United States was better prepared to retaliate, if necessary, and Roosevelt issued a more comprehensive statement. Again, however, he did not refer to the Geneva Protocol when he said:-

“From time to time since the present war began there have been reports that one or more of the Axis powers were seriously contemplating use of poisonous or noxious gases or other inhumane devices of warfare. Use of such weapons has been outlawed by the general opinion of civilized mankind. This country has not used them, and I hope that we never will be compelled to use them. I state categorically that we shall under no circumstances resort to the use of such weapons unless they are first used by our enemies. As President of the United States and as Commander in Chief of the American armed forces, I want to make clear beyond all doubt to any of our enemies contemplating a resort to such desperate and barbarous methods that acts of this nature committed against any one of the United Nations will be regarded as having been committed against the United States itself and will be treated accordingly. We promise to any perpetrators of such crimes full and swift retaliation in kind. …. “

After Germany was defeated, consideration was given to using poisonous gas on Japanese forces in the Pacific in order to bring the war swiftly to an end. However, the joint chiefs never recommended its use to the President. Personal and institutional distaste for chemical warfare among military men probably played a major role. The military view that gas was an insidious and dishonourable weapon did not necessarily mean that all military decision makers agreed with President Roosevelt that the use of gas had been “outlawed by the general opinion of civilized mankind.” But some did. President Roosevelt’s statement would, in any event, have been a hurdle to overcome even though his death left any final decision to President Truman.

images         The United States did not use gas warfare in Korea although authority to do so was requested by some of their commanders in the field. US preparedness was greater than that of the North Koreans or mainland Chinese, and the gas was thought by some to be useful in flushing the enemy out of entrenched positions. When the North Koreans accused United States forces in Korea of germ warfare, American representatives denied the charges, maintaining that such warfare was abhorrent. Although not decisive,  American failure to use gas in Korea and their defence against the germ warfare charge are evidence that they believed the use of poison gas and germ warfare to be wrong.

During the period between the Korean and Vietnam conflicts, Wisconsin’s Democrat Congressman Kastenmeier  precipated a debate on the use of chemical and biological warfare by introducing a draft concurrent resolution which would have reaffirmed the longstanding policy of the United States that in the event of war the United States shall under no circumstances resort to the use of biological weapons or the use of poisonous or obnoxious gases unless they are first used by their enemies.

Congressman Kastenmeier deduced from public statements and articles that the Defence Department was attempting to relax policy strictures on chemical and biological warfare.When asked whether his administration was contemplating changing United States policy against initial use of chemical and biological weapons, President Eisenhower said that “no official suggestion has been made to me, and so far as my own instinct is concerned, it is not to start such a thing first.”

images (1)     Fast forwarding  to the Vietnam War, in replying to Communist charges of violation of the Geneva Protocol , United States representatives excepted tear gases and  herbicides from the provisions of the protocol, thus  implying a conviction that they had to observe those provisions. Similarly, Secretary Rusk insisted that the US were not “embarking upon gas warfare in Vietnam …. We are not talking about gas that is prohibited by the Geneva Convention of 1925 or any other understandings about the use of gas.” In other words they were splitting hairs.

In 1966, the United States sponsored and voted for a United Nations General Assembly resolution which called for “strict observance by all states of the principles and objectives of the Protocol” and condemned “all actions contrary to those objectives.”

A United States delegate stated that “while the United States is not a party to the Protocol, we support the worthy objectives which it seeks to achieve.” Following this resolution, the State Department took the view that, by voting for the resolution, “the United States reaffirmed its long-standing support for the principles and objectives of the Protocol.” In this view, the “basic rule” set forth in the protocol “has been so widely accepted over a long period of time that it is now considered to form a part of customary international law.”

images (2)                                                                                 When the US finally ratified the Geneva Protocol on 22nd January 1975 it was the last major industrial nation to do so. Since that time, and notably in the case of the war against Serbia, the notions of ‘just war’ and ‘humanitarian war’ have emerged along with the concept that the mighty America is the ‘world’s policeman’ in order to justify military action. But these arguments provide increasingly flimsy cover for the real reasons America and its allies have invaded and plundered the lands of others.

Given the massive lack of popular support across the world for Obama’s proposed military strike against Syria it could be said the world has drawn another red line and maybe the President of the United States should beware of stepping over it.