THE HISTORY OF PROHIBITION OF THE USE OF CHEMICAL WEAPONS IN INTERNATIONAL HUMANITARIAN LAW UDC : Nebojša Raičević - PDF

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FACTA UNIVERSITATIS Series: Law and Politics Vol. 1, N o 5, 2001, pp THE HISTORY OF PROHIBITION OF THE USE OF CHEMICAL WEAPONS IN INTERNATIONAL HUMANITARIAN LAW UDC : Nebojša Raičević

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FACTA UNIVERSITATIS Series: Law and Politics Vol. 1, N o 5, 2001, pp THE HISTORY OF PROHIBITION OF THE USE OF CHEMICAL WEAPONS IN INTERNATIONAL HUMANITARIAN LAW UDC : Nebojša Raičević Faculty of Law of the University of Niš Abstract. The prohibition of the use of chemical weapons was first estabilished under the customary law rules to be later on incorporated in international treaties. It was for a long time that only use of chemical weapons was prohibited, but existence of that prohibiton only proved to be insufficient. Because of that the Chemical Weapons Convention of 1993 also includes, in addition to the prohibition of the use of chemical weapons, a prohibition of their production, stockpiling and trasnfer as well. Also, an obligation to destory the existing stocks of chemical weapons was also established under the Convention. Such a wide circle of prohibitions will make the struggle against chemical weapons more effective. Key words: chemical weapons, use of chemical weapons, international treaties, international humanitarina law 1. INTRODUCTION A great number of human victims and considerable material destructions as consequences of frequent wars have influences certain legal rules to be created that must be respected in war. Legal rules that regulate warfare (ius in bello) known in present times under the name international humanitarian law, should conciliate two contrary notions: military need (ratio belli. necessitas belli) and requests of humanity. The basic purpose of international humanitarian law is to make war, to the extent possible, more humane. To that end gradually adopted were some limitations in warefare both as concers persons and means of warefare and in view of objects and the methods of waging war. Limitations with respect to the means of warfare, that is, limitations in view of weapons are intended to make the use of those means impossible or limited, which would cause noncombatants and to die and civilian objects to be destroyed or would unnecessarily increase suffering of combatants and cause disproportional destruction of military objects. Chemical Received, November 1, 2001 614 N. RAIČEVIĆ weapons are one of the means of warefare the prohibition of which has been present since ancient times in international law. Chemical weapons are a kind of weapons for mass destruction (in addition to that nuclear and bilogical) and is based upon the adverse effect of certain chemical substances to living organisms. Chemical weapons could be, in the shortest possible way, defined as each weapon containing chemical substances, nonliving matters capable of causing consequences against people, animals and plants . 1 Chemical weapons are, therefore, a collective notion including in iself, in addition to chemical agents (poisonous gasses), different means that serve to be immediately used. From the earliest wars to the present day belligerent parties have been using certain poisonous substances in order to inflict as heavy losses on the enemy as possible. Concurrently developing with the use of poisonous substances in warfare were the rules limiting or prohibiting the use of those substances. 2. PERIOD PRIOR TO WORLD WAR I The use of certain chemical agents in warfare has been known for a long time. Chemical agents emrerged considerably prior to the biological and nuclear weapons. However, the forms of chemical agents and the modes of their use were primitive. In spite of the fact that a great number of wars had been waged, it was only in some of them that use of chemical agents was recorded. It is well known that even the old Chinese used smoke preparations pungent substances that cause nausea and disgust . 2 Used during the siege of the city Cirrha, nearby Delphi in Greece, in the 7 th century B.C. were agents that caused permanent diarrhoea with the defenders. 3 Thucydides describes that the Spartans in the Peloponnesian War in 429 B.C. set a great quantity of shrubs and threes mixed with sulphur and resin on fire in order to diminish the defence of the city Platea. 4 However, that attempt failed because the wind had changed to the opposite direction, so that the attacker suffered a lot of losses. 5 The Middle Ages have also seen the use of poisonous substances. Poisons have very often been used for criminal poisoning of people. In the struggle for power and herritage individuals or groups of people were fighting among themselves by means of various poisonous agents. But, poisons were used for war purposes. Thus, the Byzantines are believed to have produced a chemical substance based on sulphur that released sulphorous 1 M. Starčević: Osnovi medjunarodnog prava i medjunarodnog ratnog ratnog prava, Beograd, 1998, p G. Perazić: Medjunarodno-pravna zabrana upotrebe sredstava za masovno uništavanje u ratu, Beograd, 1968, p SIPRI: The Problem of Chemical and Biological Warfare, Vol. I, The Rise of CB Weapons, Stockholm, 1971, p C. A. Тарасенко: О запрещении химического оружия, Советский ежегодник междунароного права, 1979, p G. Perazić: Medjunarodno-pravna zabrana upotrebe sredstava za masovno uništavanje u ratu, Beograd, 1968, p.3. The History of Prohibition of the Use of Chemical Weapons in International Humanitarian Law 615 anhidrides, hydrogen and chlorine as well. 6 When Belgrade was defended against the Turks in 1456, arsenic smoke clouds were used. 7 There were also examples of the use of chemical agents in wars in the modern times. During the American Civil War ( ), Patrick Gilmora, the Northern general, used incendiary ammunition against the Confederate units of Pierre de Beauregard who calls it the most destructive ammunition used in a war . 8 Napoleon III used hydrogen in 1865 for military purposes. 9 Also, during the Crimean War a sulphuric smoke was used against the Russian garrison in Sevastopol. 10 During the Boer War in 1900 explosive shells filled with a poisonous gas were used. 11 The aforementioned cases of the use of chemical agents cannot be considered a usual form of warfare, but accidental and periodical events. Chemical agents used during wars were not intended for military needs, it was their incidental purpose. There were no special devices for their use. Therefore, chemical weapons, in the ordinary meaning of the term, cannot be spoken of over this period. That a chemical warfare could come to the fore, it was necessry to make poisonous substances the purpose of which would be to inflict as heavy losses on the enemy as possible. In addition, devices for their use should have been created and improved. Such improved chemical weapons were proved to have been used only in World War I, so that since that time they are considered a real means of mass destruction. The history of mankind does not recognize the form of warfare thus odious as is the use of poisonous substances for military puposes. The use of these agents has been condemned for a lot of reasons. Those were considered perfidious combat agents inconsistent with the military chivalry and, accordinlgy, should not be used by the warriors. Their use has been condemned a long time ago by the ancient writers such as Philius, Ulpian, Tacitus, Claudianus and others. 12 The Roman Senate stuck to the principle that war should be waged using weapons but not poisons (armis bella, non venenis geri debere), 13 Also, Hugo Grotius thought that it was forbidden to kill anybody by means of poison and that it is not allowed to poison weapons and water. 14 Initially, prohibitions were being established under the customary law to gradually take, later on, particularly in the second half od the 19 th century, a form of a treaty. The first written treaty under which the use of chemical agents in wafare was limited is a Franco-German agreement of 1675 concluded 6 S. D. Stackelberg: Le péril chimique et la Croih viollete, Lausanne, 1929, pp : quoted after: G. Perazić: Medjunarodno-pravna zabrana upotrebe sredstava za masovno uništavanje u ratu, Beograd, 1968, p SIPRI: The Problem of Chemical and Biological Warfare, Vol. I, The Rise of CB Weapons, Stockhoilm, 1971, p J. Campagnon: L'interdiction des armes chimiques, Défense nationale, 1988, No. 3 (translation), Informativni bilten prevoda CVNDI, 1988, p SIPRI: The Problem of Chemical and Biological Weapons, Vol. I, The Rise of CB Weapons, Stockholm, 1971, p J. Campagnon: op. cit., pp В. И. Лисовский: Международное право, Москва, 1970, р G. Perazić: Medjunarodno ratno pravo, Beograd, 1966, Ibid. 14 Quoted after С. А. Тарасенко: op. cit., p. 135. 616 N. RAIČEVIĆ in Strasbourg. 15 The use of poisoned shells was prohibitted in warefare under this agreement on a bilateral grounds. The prohibition of the use of chemical substances in warefare is also contained in Lieber's instructions of That prohibition is discussed twice in those Instructions. First of all, Part I includes a general prohibition to use poisons in war (Article 16). In Part III of the Instructions (Article 70) that prohibition is partially made precise and that Article reads: The use of poisons in any manner, be it to poison wells, or food or arms, is wholly excluded from modern warfare. He that uses it puts himself out of the pale of the law and usages of war. The first act at the multilateral level that contains a separate prohibition of the use of poisonous substances in war is the Brussels Declaration of Although it was not an agreement in the ordinary meaning of the term, but remained in the stage of a project, cited here will be its provisions having in mind its impact on the further codification of the law of war. First of all, laid down in Article 12 of the Declaration is that belligerent powers shall not have full liberty in choosing means and methods of fight against the enemy. The next, Article 13, in keeping with the aforementioned principle, particularly prohibits certain means and methods of warfare. First and foremost is the prohibition of the use of poison and poisoned weapons . Based upon such provisions of the Brussels Declaration, a conclusion can be drawn that it was an obvious intention to prohibit the use of posions in warfare. That there was a great scorn for posions and poisoned weapons can be seen from the fact that their prohibition ranks first of all prohibitions of other means and methods of warfare. The next international document under which the use of chemical agents in warfare is prohibited are the Hague Conventions with respect to the laws and customs of war on land. 18 To put it more precisely, the provisons on that are contained in the annexes to these Conventions. The most important parts of these Conventions are those annexes and they are known under the name the Hague Regulations. 19 The provisions with respect to 15 Ibid. 16 Their full title reads: Instructions for the Government of Armies of the United States in the Field. These Instructions are the first attemprt to codify the law of war. The codification was carried out during the American Civil War ( ) by Lieber, professor at the Columbia College. Although binding only for the army of the United States, they were of much greater significance. Lieber's instructions exerted influence on creating similar instructions in other states also influencing codification of international law of war. Significant number of their provisions as taken over in the Draft Brussels Declaration, in the Manual for Law of War of the International Law Institute and finally the Hague Regulations of War on Land. For the text of Liber's rules see: D. Schindler J. Toman: The Law of Armes Conflicts A Collection of Conventions, Resolutions and Other Documents, Geneva, 1973, pp The full title reads: Project of an International Declaration concerning the Laws and Customs of War. The Project of the Declaration was adopted on 27 July, 1874, at the international conference held in Brussels convened on the intiative of the Russian emperor Alexander II. Particpating in the conference were 15 European states which discussed the project submitted by the Russian Government, which was adopted with slight amendments; D. Schindler J. Toman: op. cit., pp The Convention with respect to the Laws and Customs of War on Land, signed on 29 July, 1899, at the I Hague Conference (that came into force on 4 September, 1900) and the Convention with respect the Laws and Customs in War on Land, signed at the II Hague Conference on 18 October, 1907 (that came into force on 26 January, 1910). For the text of the Conventions see: D. Schindler J. Toman: op. cit., pp Their full title reads as follows: Regulations respecting the Laws and Customs of War on Land. The History of Prohibition of the Use of Chemical Weapons in International Humanitarian Law 617 the prohibition of poisonous substances, in both of these Regulations (1899 and 1907), are identical and for that reason will be dealt with side by side. The problem of prohibition of the use of poisonous substances in warfare is regulated under Article 23 of these Regulations. Two paragraphs of this Article are essential for that prohibition. First, it is a general prohibition of the employ of arms, projectiles or material of a nature to cause superfluous injury (paragraph e ), since poisonous substances, in view of their effects, can be considered means that cause superfluous injury, so that they fall under this paragraph as well. However, that the prohibition to use poisons would be intensified, paragraph a of the same Article explicitely stioulates that the employ of posions and poisoned weapons is prohibited. One can see that the same formulation is used as that in the Brussels Declaration. Adopted at I Hague Conference was one more act which contained the prohibition of the use of posisonous substances in warfare. A Declaration Concerning Asphyxiating Gases is in question. 20 The prohibition has been fortmulated as follows: The contracting powers prohibit the use of projectiles the sole objects of which are the diffusion of asphyxiating or deleterious gases . Characteristic of this prohibition is that the weapons not still existing in those times are meant, but the creation of which could be envisaged in the future to come. At the time the Declaration was adopted, projectiles filled with deleterious gases were only an idea. 21 The subsequent events, particularly World Wars I, proved this forecat to be true and that such weapons came into being. This was the status of legal norms in the field of prohibitions of the use of chemical weapons when World War I outbroke, and when those norms should have shown practical values. However, all these prohibitons failed in producing expected results. 3. WORLD WAR I AND THE PERIOD BETWEEN THE TWO WORLD WARS World War I has really marked the coming on the scene and the full use of chemical weapons. In no war prior to and after World War I had such quantitiy of chemical agents been used nor there were so many victims due to their use. Chemical weapons were used by both belligerent parties, Germany and the Allies. The first significant use of chemical agents took place on 22 April, 1915 at the battle near Ypres in Belgium. 22 On that occasion Germany used bottles filled with chlorine against the Allied forces for the purpose of breaching the Allied front to the lenght of 6 kilometres. As a consequence of that attack there were 15,000 wounded soldiers on the Allied forces side out of which 5,000 were killed. 23 The cause for such great losses was sudden and unexpected attack as well as Al- 20 The term declaration is used in the meaning of one of the names for an international agreement By its essence it represents an international agreement subject to ratificatrion, and which imposes legal obligations to the contracting parties. 21 For more details see: G. Perazić: Medjunarodno-pravna zabrana upotrebe sredstava za masovno uništavanje u ratu, Beograd, 1968, pp. 33 and А. Диков: Борбата на народите за забрана на бойните отровни вещества, Армейски комунист, 1975, No. 2, p Used on that occasion were 498 tons of chlorine spread by means of 20,730 bottels. For more details on that 618 N. RAIČEVIĆ lied soldiers not equipped with means for defence against chemical warfare. The Allied forces, as an answer to the German attack, began using chemical weapons, that is, they responded with reprisals of the same kind. Already in September of the same year the British used chemical weapons at the battle of Loos. 24 As the war made further progress, chemical weapons were increasingly used. With the advent of time new poisonous gasses were used as well as new devices for their spreading. Thus, in 1918, the situation was that 30 percent of the complete ammunition was filled with poisonous gasses, the German chemical shells amounting to 50 percent of the totall number of cannonballs shot by the German artillery in the same year. 25 More than 50 different toxic compounds to the quantity of 125,000 tons are supposed to have been used by Germany and the Triple Entente over the priod from 1914 to Such frequent use of poisonous gasses resulted in mass victims. Shown in the below table is the number of those victims: 27 State Total casualties from chemical Fatal casualties agents (fatal and nonfatal) from chemical agents Germany 200,000 9,000 France 190,000 8,000 Great Britain 189,000 8,100 Austria-Hungary 100,000 3,000 Italy 60,000 4,600 Russia 475,000 56,000 USA 73,000 1,500 Belgium and Portugal 10,000 1,000 Total: 1,297,000 91,200 Note: The data for the USA nad Great Britain has been obtained based upon the corresponding statistics, while the data for other states has been reported based upon the estimation of colonel Prentiss, given in his book Chemicals in War published in 1937, compiled by him after a careful study of the available materials. After World War I there appeared in the doctrine of international law different interpretations with respect to the use of chemical weapons in warfare. One group of writers consisted of authors who condemned the use of chemical weapons and considered it violations of international law, while gathered in the other were those who tried to prove that the use of those weapons did not constitute violation of the existing legal prohibitions. Particularly persistent in justifying the use of chemical weapons was the German law theory. There were opinions that Germany observed the rules of the Hague Declaration Concerning Asphyxiating Gases until 1916, because the German army used bottles to spread event see: SIPRI:The Problem of Chemical and Biological Warfare, Vol. I, the Rise of CB Weapons, Stockholm, 1971, p Ibid. 25 XII Conférence international de la Croix-Rouge, - Genève 7. oct. 1925, La guerre chimique et ses consequences ; quoted after: G. Perazić: Medjunarodno ratno pravo, Beograd, 1966, p Т. Федоров: Химическое оружие под запрет, Международная жизнъ, 1982, No. 7, p The table and notes accompanying it are given based upon the data from: SIPRI; The Problem of Chemical and Biological Weapons, Vol. I, The Rise of CB Weapons, Stockholm, 1971, p. 129. The History of Prohibition of the Use of Chemical Weapons in International Humanitarian Law 619 poisononus gases that could not be classified as projectiles prohibited under the Declaration. Pointed out also was the fact that projectiles used were filled with explosive in addition to chemical charge, so that was why they were not covered by the Hague Declaration, because the only purpose was not spreading of asphyxiating gases. In order to evade this Declaration as well as the Convention respecting the Laws and Customs od War on Land of 1907, reference was also being made to the clause si omnes (general participation) contained in all treaties. 28 Emphasised was that s
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