Regimes prohibiting the use in war of poison gas and dum dum bullets

2     Regimes prohibiting the use in war of poison gas and dum dum bullets

Introduction

If the landmine regimes are to be analysed as nested regimes, then the 1925 Gas Protocol and Hague Declaration 3 offer important parallels as part of wider efforts under IHL to regulate the conduct of armed conflict. The ban on dum dum bullets is the first codification of the customary international law principle prohibiting weapons causing unnecessary suffering,¹ and the only treaty-based prohibition on a conventional weapon in widespread use until the mine ban treaty nearly 100 years later. The 1925 Gas Protocol can trace its roots to Hague Declaration 2 from the 1899 Peace Conference, which prohibits the use of projectiles whose sole object is the diffusion of asphyxiating or deleterious gases.² It provides a very early binding legal restraint on a weapon that had been widely condemned around the world.³

Considering commonalities and distinctions between the relatively ‘new’ landmine regimes and IHL antecedents enables us to better understand IHL regime effectiveness. A link between dum dum bullets and APMs may be found in the arguments deployed by those who debated the issues from military utility and humanitarian perspectives, and how the weight given to these different approaches fed into regime provisions. Like APII, Hague Declaration 3 and the 1925 Gas Protocol were considered in relation to military targets. The mine ban treaty is therefore unique in focusing directly on the impact of landmines on affected civilian populations during hostilities, whilst also addressing the post-conflict challenge.

If normative considerations lie at the heart of IHL, the arms control expert Jozef Goldblat observes that:

all laws of war suffer from one common weakness: the rules of conduct established for belligerents in time of peace may not resist the pressure of military expedience generated in the course of hostilities, and the attempts to ‘humanize’ war may sometimes prove futile.⁴

A corollary to this point is the argument that states only ban weapons which they have no intention of using.⁵ Assessing the effectiveness of Hague Declaration 3 and the 1925 Gas Protocol, by considering how far outcomes are consistent with the prevailing political will and national security requirements of the states involved, informs two important sets of questions. First, it enables us to better understand the influence (and limitations) of stigmatization as a tool for behaviour change. Second, it further clarifies the two-level dynamics of IHL regimes; international commitments need to be followed by national level implementation.

Geoffrey Best points out that between 1750 and 1850 there had been little change in the science and technology of warfare. However, the latter part of the nineteenth century saw large standing armies become the norm as other European states followed the German example of introducing conscription. These armies were equipped with a number of new inventions with revolutionary implications for warfare. Metal-hulled, screw-propelled warships, smokeless powder and machine guns, in different ways, meant that ‘both the means and the measure of destruction and killing became far greater than they had ever been before’.6 Between 1885 and 1895, the rate of fire of a rifleman had increased from three to sixteen shots per minute, while the range of artillery had grown from one to 6,000 yards.⁷ Technological developments therefore provide an important contextual dynamic in order to understand the roots of regime development.

The 1899 Hague Peace Conference was called by the Tsar of Russia with the overt goal of slowing the mounting cycle of military expenditure among the Great Powers. The objective of the Hague Peace Conference was not disarmament, but as described by Russian Foreign Minister Count Mouravieff in his circular of 11 January 1899:

an understanding stipulating the non-increase, for a definite period, of the present effective military and naval forces, and also of the military budgets pertaining to them; and a preliminary investigation of the means by which even a reduction of these forces may be secured in the future.⁸

The initiative was described as a response to the ‘armed peace’⁹ that characterized contemporary Europe with states investing ever-increasing amounts in new and improved armaments. The Tsar’s manifesto condemned the system of ‘armaments a l’outrance transforming the armed peace into a crushing burden that weighs on all nations and if prolonged will lead inevitably to the very cataclysm which it is desired to avert’.¹⁰ The point of departure for the conference thus reflected economic and ‘hard’ security interests as well as humanitarian considerations.

The Hague – the capital of a small, neutral country – was carefully selected as the site of the conference. Opening on 18 May 1899, twenty-six predominantly European countries attended. None of the participating states had high expectations going into the conference. Indeed, many were cynical as to Russia’s motives; well aware that, humanitarian goals notwithstanding, the Tsar’s initiative had to be set next to the fact that Russia was lagging behind in the contemporary arms race. The event was therefore characterized by what Inis Claude terms ‘multilateral insincerity’.11 States’ participation in the Russian initiative reflected the requirements of a two-level game: to do otherwise would be diplomatically embarrassing, and run contrary to domestic and international public opinion. However, the underlying security, political and economic interests of participating states ran counter to the overt goals of the conference.

The conference was divided into three Commissions: on Armaments, on the Laws of War, and on Arbitration, which in turn divided into sub-committees. The use of sub-committees and chairmen, as well as majority voting rather than unanimity, was innovative for the time. This approach was to be adopted and further developed in future institutional procedures for international negotiations.¹² However, the results of the 1899 Hague Conference reflected the minimalist expectations of the participants. The conference produced three Conventions: on Arbitration, Laws and Customs of War on Land, and Extension of the Geneva Rules to Maritime Warfare; three Declarations on Projectiles from Balloons, Asphyxiating Gases and Expanding Bullets; six ‘Wishes’ for future endeavours, and a Resolution recalling the desirability of limiting expenditures for armaments and new types of weapon. In concrete terms this was a realistic, if much more limited, return than aspired to by the Russians.

Delegates were aware that although a failure to agree reductions in expenditures on armaments was always the likely result; nevertheless there would be significant public disappointment at such an outcome. Baron de Bildt of Sweden and Norway emphasized to delegates that:

when the results of our deliberations shall become known, there will arise, notwithstanding all that has been done for arbitration, the Red Cross etc., a great cry: ‘it is not enough!’ And this cry, ‘it is not enough’, most of us must conscientiously acknowledge to be just.¹³

Although the proposal put forward by Switzerland to prohibit ‘the use of projectiles which aggravate wounds and increase suffering, such, for example, as “dum dum” bullets’¹⁴ was not on the original conference agenda, it was readily seized upon as an achievable objective after the failure of states to agree concrete limitations on the headline conference goals. Despite the underpinning realpolitik interests of many participating states, the need to demonstrate progress in humanitarian terms proved compelling in terms of agenda setting and thus provided the opening for a focus on exploding bullets.

Bullets that expand and flatten in the human body were first mass produced at a British Indian arsenal in Dum Dum, near Calcutta,¹⁵ thus providing the more colloquial generic title of ‘dum dums’ for a shell which ‘had the capability of spreading out on entering the target body and of inflicting a much bigger wound than did the normal hard-nosed high-velocity rifle bullet’.16 Discussion in the relevant sub-committee began by focusing on the design of dum dum bullets. General Poortugael, representing the Netherlands, supported the Swiss initiative, making public his Government’s instruction that he should pursue a formal prohibition on these rounds. He characterized them as inhuman projectiles which, by design, cause incurable wounds that go beyond what is necessary to make soldiers incapable of fighting. General Sir John Ardagh, for Great Britain, disputed this description, comparing dum dum bullets to any other kind of projectile. A number of more or less specific formulations were put forward by delegates with the sub-committee finally adopting the following wording: ‘The contracting Powers prohibit the use of bullets which expand or flatten easily in the human body, such as bullets with hard jackets, whose jacket does not entirely cover the core or has incisions in it.’¹⁷

When the proposition was put to the vote, nineteen out of twenty delegations present voted in favour and only Great Britain voted against. General Ardagh, for Great Britain, in justifying his negative vote, put forward the unedifying argument that bullets with greater stopping power – such as dum dums – were required in battle against ‘savages’ who continued to fight when wounded by smaller calibre rounds. This distinction was rejected by the sub-committee and the original proposition was accepted by twenty-two delegations with only the US and Great Britain voting against, while Portugal abstained.¹⁸ The majority of states present were thus happy to form a coalition on the ‘right side’ of this issue. In practice, the British magnified the norm bandwagon effect by combining a national policy position that was on the wrong side of a humanitarian issue with an accompanying message that was insensitive in the extreme.

Origins and negotiation of the 1925 Gas Protocol

Custom and usage stretching as far back as ancient times forbids the use of poison in battle. Hague Declaration 2 was the first codification of this principle, prohibiting projectiles designed to diffuse asphyxiating or deleterious gases. However, gas warfare rose to the top of public and political agendas due to the widespread use of these weapons during the First World War. Throughout the course of the war, 6,000 tonnes of lachrymators and 7,000 tonnes of respiratory irritant gases were used.¹⁹ John Keegan describes how ‘gas in a variety of forms, the more deadly asphyxiant phosgene, and the blistering “mustard”, would continue in use throughout the war, and chlorine would kill thousands of Russian troops in German offensives west of Warsaw’.²⁰ Gas warfare therefore fused a normative imperative that can be traced back to the earliest accounts of warfare, with high levels of contemporary concern. This provided a potent mix, combining the same fears over military–technological progress, that provided impetus to the Hague negotiations, with the psychological and physical scars of ‘the war to end all wars’.

The Treaty of Versailles, and the other treaties that delineated the end of the First World War, codified a ban on possession as well as use of these weapons by the defeated powers.21 These measures constitute neither a multilateral arms control nor an IHL regime, but a series of conditions applied to the defeated by the victors. The 1925 Gas Protocol, negotiated over a period of less than eight weeks in 1925, was another significant development. The protocol, which provides for a general prohibition on ‘the use in war of asphyxiating, poisonous or other gases, and of all analogous liquids, materials or devices’,²² marks a clear break from victor’s justice and a return to negotiations between states under international law.

As an attempt to regulate the arms trade, the 1925 International Conference for the Control of the International Trade in Arms, Munitions, and Implements of War, convened by the Council of the League of Nations from 4 May to 17 June 1925 was, like the first Hague Peace Conference, guided by economic and hard security imperatives. International regulation was no more feasible then, than it had been in 1899. In another parallel, the inclusion of poison gas on the conference agenda had not been planned, but was added at the behest of one of the delegations – the United States – in order that the conference achieve (and be seen to achieve) a meaningful outcome in such a high-profile area of concern. The need to respond to domestic and international humanitarian constituencies was keenly felt.

The document initially considered by delegations in Geneva dealt solely with the trade in conventional weapons. The US representative proposed an amendment prohibiting the trade in chemical weapons. This initial emphasis represents the balance sought by the US who wanted to be ‘the moral leader in the worldwide quest for security through disarmament’ while also seeking ‘a modicum of insurance’²³ in case deterrence failed. During negotiations, although the US amendment was widely supported, delegations acknowledged the challenges of implementing a ban on trade when it was almost impossible to distinguish between chemicals used for civilian and military purposes. The difficulty of war readiness for non-gas producers was also recognized. These discussions highlight the underpinning security dynamics that had to be balanced with economic and humanitarian concerns in shaping the regime design process. Multiple interests presented participants with a version of the Prisoners’ Dilemma. Support for the common good of achieving a complete ban was conditioned by concern over the potential inability to react preventatively to the development of chemical weapons by another state.

The US proposed that these issues be devolved for discussion in technical committees. However, two central problems emerged when they were considered in detail:

1    The difficulties posed by dual-use technologies became swiftly apparent. Expert opinion at the conference was unanimous, that nearly all materials used in chemical weapons were to be found in non-military industrial products and processes. As Zanders notes, ‘the inability to distinguish unambiguously between chemicals used as warfare agents and those that have peaceful industrial purposes rendered any ban on their trade or transfer impractical because of the impossibility of verifying the end use of the recipient state’.24

2    The principle of equal treatment among states, in the spirit of the Covenant of the League of Nations, was highlighted by many delegations as a guiding principle for their deliberations. There was a recognition that a ban on trade was discriminatory, freezing and legitimizing the superiority of those states that already had an advanced chemical industry and would therefore be unaffected by the ban.

Unable to find a compromise between prohibition and unrestricted use, the US withdrew the reference to trade in their text. Instead, a complete prohibition was proposed on the use of poison gas in war. The prohibition was further enlarged due to the acceptance of a proposal by the Polish delegation such that ‘any decisions taken by the conference concerning the materials used for chemical warfare should apply equally to the materials employed for bacteriological warfare’.²⁵ As in The Hague some twenty-five years before, technological development was an influential factor. The humanitarian effects of recently developed weapons provided a backdrop to discussions that left no doubt as to the right side of the gas warfare issue. Moreover, the challenge of distinguishing civilian from military use of chemicals, clearly demonstrated by technical expert communities, proved influential in moving negotiations beyond the initial focus on trade.²⁶

The interplay between design and implementation

Relating regime design to implementation and effectiveness

During negotiations, British and US delegates argued that the definition of expanding bullets provided in the declaration contained too much technical detail. However, all the other delegations present recognized that clarity was essential. A prohibition based on design characteristics was necessary to prevent states finding loopholes in their obligations. Linking the ban to more general principles of IHL would have given ample opportunity for applying different interpretations. Instead, Hague Declaration 3 is a prohibition based on a particular technical specification: the construction of bullets. The appropriateness of this design-based prohibition has been demonstrated over time. The declaration has proved very successful in eliminating both the manufacture and use by states of this type of ammunition for military purposes.

Rapid acceptance on a political level, and the absence of any known violations of the prohibition by regime members are evidence of the declaration’s effectiveness.²⁷ However, the wording of the declaration reflects the nature of firearms and ammunition at the end of the nineteenth century, and the understanding of wound ballistics at that time. It has been argued that this wording is no longer adequate to achieve the regime’s objectives:

given the variety of ways in which bullets are now constructed, a modern understanding of wound ballistics and recognition that other factors such as bullet velocity are also responsible for the degree of injury and suffering from rifles and handguns.28

Drawing on wound ballistics research, Robin Coupland and Dominique Loye argue that certain full metal jacket bullets (standard military issue) can cause wounds similar to dum dum rounds. Other ‘field’ factors such as ricochet, range and the condition of the weapon can also generate a variety of wound effects: ‘in brief, bullet construction is only one of the factors which lead to large wounds’.²⁹ By basing the prohibition on a technical characteristic, the regime has lacked the flexibility to adapt to developments in firearms and ammunition since 1899. Coupland and Loye note that ‘it has become evident that adhering to the strict wording of the declaration does not always achieve its apparent objective and purpose, that is, to eliminate the unnecessary injury and suffering associated with very large bullet wounds’.³⁰

A related consideration links technological development to changing practice in the conduct of armed conflict. Evolving weapons technology has had profound effects on military strategy and tactics. The arguments put forward by Ardagh against the wording of the declaration relate to the use of single shot rifles, at short range, to stop a charging enemy. But the development of automatic weapons, and the integration of infantry with armour and artillery on the battlefield have made both these arguments and the regime itself less relevant in practice than in 1899. A technical definition has ‘frozen’ the regime in binding it to the technology and military practice of the time. This does not limit the regime’s initial effectiveness but does constrain its ability to evolve, explaining why regime membership has not grown significantly over time beyond its initial adherents.³¹

The 1925 Gas Protocol also faces a number of challenges as a result of temporal considerations. The protocol restricts its non-use obligation to states parties that are at war. This means that its provisions do not apply in the case of the internal armed conflicts that have become increasingly prevalent in the years since the protocol entered into force. In fact, as Jozef Goldblat suggests, ‘it can also be argued that the Protocol does not cover those international conflicts, in which the belligerents do not consider themselves to be formally at war’.³² Moreover, it does not prevent research, manufacture, stockpiling, transfer or training in the use of these weapons.³³ There are thus a number of loopholes that members may exploit that are consistent with regime rules, but which undermine regime goals. Ambiguous wording leaves considerable room for diverging interpretations. For example, states have taken very different positions on whether tear gas and other non-lethal gases fall within the protocol’s scope. In 1930 the British clarified a ‘serious ambiguity’ between the English and French language versions of the treaty. In legal terms, both versions were equally valid but the English version referred to ‘asphyxiating, poisonous or other gases’, while the French version had ‘similaires’ in place of ‘other’. The UK, although later changing its position, stated its understanding that lachrymatory (tear) gases were included and the French subsequently confirmed this.34

Regime compliance has been mixed. Allegations of voluntary defection can be found in several cases. Egyptian forces were accused of using poison gas in the Yemen during the 1960s. This issue was discussed in the United Nations General Assembly (UNGA) on 5 December 1966, and led to a resolution calling for observance of the ‘principles and objectives’ of the 1925 Gas Protocol.³⁵ In 1982, the US government alleged the use of chemical weapons in Laos, Cambodia and Afghanistan by the Soviet Union and its allies. Both sides also used chemical weapons during the Iran–Iraq war, while Iraq gained worldwide notoriety for its use of chemical weapons against its own Kurdish minority population with the attack on Halabja, in Northern Iraq, in March 1988.³⁶

Examples of regime defection demonstrate the importance of compliance verification. While Hague Declaration 3 was agreed without verification provisions it may be argued that this is unnecessary since, in terms of manufactured production, the declaration has been almost universally implemented.³⁷ However, in contrast to chemical weapons, which require significant technical and scientific skill to develop and deploy, expanding bullets represent a much simpler technology. Dum dum rounds can be easily improvised prior to battle through cutting an ‘X’ into the tip of a regular small calibre round³⁸ which then expands on impact, causing similarly large wounds to rounds designed for that purpose. This would seem to reinforce Goldblat’s point about rules made in peacetime governing the conduct of conflict, a view also expressed in 1899 by delegates who feared that the protocol’s provisions might not withstand the strain of hostilities.³⁹

Similarly, the 1925 Gas Protocol does not contain provisions for monitoring or verification of treaty compliance. In order to address this lacuna, UNGA Resolution 37/98 of 13 December 1982 requested the Secretary-General ‘to investigate, with the assistance of qualified experts, information that may be brought to his attention by any Member State concerning activities that may constitute a violation of the protocol or the relevant rules of customary international law’.⁴⁰ The resulting report on chemical and bacteriological (biological) weapons, including provisional procedures, was presented to the General Assembly in 1984.⁴¹ A UN Mission, investigating allegations of the use of chemical weapons in the Iran–Iraq war, issued seven reports between March 1984 and August 1988. On 21 March 1986, a United Nations Security Council Statement criticized Iraq for the ‘use of chemical weapons, in clear violation of the Geneva Protocol of 1925’, while on 26 August of the same year, the Security Council unanimously adopted Resolution 620 condemning ‘the use of chemical weapons in the war between Iran and Iraq’.⁴²