Chemical defoliation or chemical warfare?

minor additions and reviewed and revisions, 27 February 2019.

The question has been raised whether the use of chemical defoliants by the United States in Southeast Asia from 1961–1971 should be considered an act of “chemical-biological warfare” and therefore, as such, condemned by the international community. Before any rational judgment can be rendered on the substantive merits of the question, certain words, phrases, and issues must be defined with the kind of precision expected of a criminal complaint.

Chemical–Biological Warfare

First we must carefully define the pejorative sense of the phrase “chemical-biological warfare.” After all, most weapons of war are chemical and to the extent that they kill living organisms, especially human beings, they are biological. Since the first stone thrown by a neanderthal, weapons have had as their sole raison d’etre injury to human beings or other animals. Today we try to establish artificial distinctions between and among “chemical-biological” weapons and the nuclear devices, incendiary bombs, and phosphorus grenades in the national arsenals, or a bottle of gasoline in the hands of a committed terrorist. As attorneys, however, we must ask whether such a distinction is really logically consistent.

Chemical-Biological Weapons

Perhaps the key to the proper definition of “chemical-biological weapons” can be found in the purposes for which they are used or the targets against which they are directed. Such an investigation requires us to look at the basic purposes of armed conflict between and among nations that we have come to know as “warfare.” If the principle purpose of warfare—at least at the level of individual combat—is to “kill the enemy,” and the tactical and strategic purposes are to capture enemy territory and appropriate resources; then can there really be any rational distinction made among the weapons of war? Is it the arbitrary distinction among “acceptable” weapons systems that separates the “civilized” soldier from the terrorist who considers all weapons and weapon systems equally suitable to further their ideological cause?

If we can not properly distinguish between and among weapons systems because of the general purposes of war, perhaps the distinction lies in the targets against which particular weapons are directed. Of course we must then ask why any weapon does not become acceptable so long as it is directed toward an enemy combatant in a just war? To answer that question we must define “enemy,” “combatant,” and most fundamentally, “just war.”

Who is the “enemy?” What kind of conduct makes an “enemy” a “combatant?” Christian tradition has set forth for us in the parable of the Good Samaritan the criteria for friendship and the ideal of human brotherhood. Unfortunately, we really have no comparable paradigm for “enemy,” unless we take that unfortunate example from World War II, when the Supreme Court of the United States decided that an entire nationality should be deemed “the enemy” at least for the duration of the war and for the purpose of confiscating property.
It has always been easier to identify the enemy when there are significant racial and ethical differences between the parties to the conflict. Characterization becomes more difficult in the context of a religious war where the only difference between the combatants is the beliefs they hold or refuse to hold or in a political or civil war between forces that share a common ethnic, religious, and cultural heritage but differ in their ideologic outlook. George Orwell furnished us with an insight into this perplexing problem when he postulated a society in which the enemy was whomever the state-controlled mass media determined should be designated the enemy at that time. It was this philosophy which allowed us to intern American citizens of Japanese ethnicity during World War II, rebuild the Japanese economy after Hiroshima and Nagasaki, and accept Japanese control of the American consumer electronics and automobile industries today.

While it would seem easier to define the word “combatant” and discuss the acceptability of specific weapons in the context of direct confrontation between combatants, how can we identify a combatant in those guerrilla wars that have been the primary market for weapons and weapons systems since the conclusion of World War II? Was the Vietnamese villager who worked the rice fields by day and transported supplies for the Viet Cong by night a combatant? Can a child under the age of seven years (the famed “age of reason” that theologians have so revered as they disputed culpability for sin over the last thousand years) a combatant, if that child carries supplies for the acknowledged “enemy”? If the villagers or civilians are enemy combatants, is there a significant difference between destroying their food supply with chemicals, or destroying their village with artillery fire? These questions are more than rhetorical. They are essential to any consideration of whether chemical defoliation is “chemical warfare.”

“Just” War

According to Robert M. Hutchins, President of the Fund for the Republic and chairman of an extended series of discussions on the natural law at the Center for the Study of Democratic Institutions in 1962, “the seven requirements of a just war now have an archaic ring, [But] they are:

1. The war must be waged for vital goods.
2. No superior authority can be called in.
3. Still higher goods must not be jeopardized.
4. The defender must not intend to go beyond the defense and restoration of violated rights.
5. The means of defense must not be unlawful.
6. The means must be proportionate to the end of defense.
7. The lives of the noncombatant population must remain inviolable.”

Hutchins goes on to quickly conclude that, “No war in which strategic bombing is employed, with or without thermonuclear weapons, [could meet these tests]. The theory of a just war is an anachronism.”
Nevertheless, if we assume the theoretical possibility of a “just war,” and the problems of the “non-aggressor defenders” in that war, we

must consider the principle that the “means of defense must not be unlawful.” This now brings us to the “law” of war or the “Rules of Warfare.” However, we must never forget the ends of war: victory, defeat, stalemate, mutual annihilation.

Since wars, as opposed to “rumbles” among street gangs and the violence occasionally engaged in among organized criminal groups, are generally conducted between and among nations, or states or those groups that would proclaim themselves nations or states, the law of war is “international law.” To be technically accurate, the “Rules of War” are “public” international law as distinguished from the private concerns of the law merchant. However vague and nebulous in theory and during peacetime, international law can be applied with a kind of definite certainty by the victor against the person and property of the vanquished after hostilities cease. Ancient wars were fought ruthlessly and without regard to any rules or regulations. “All’s fair in love and war,” is as accurate an observation as can be found in literature or history.

The rudiments of international law can be found in the “Law of the Hellenes,” which included actual compacts between and among the Greek city-states, amplified by what Aristotle called “natural law.” There were elaborate rules of warfare and the use of poisoned weapons was proscribed. Unfortunately the rules of war applied only to wars between and among the Greek city states. Athens, fighting what it believed to be a war for the protection of Greek civilization, did not feel obliged to obey the rules in its wars against Persia.
The Roman empire derived a ius bellicum or law of war from the ius gentium the body of law it had already developed as the private international law of the Roman Empire. The ius bellicum, like the Law of the Hellenes was rooted in the “natural law.” The decline of the Roman Empire put a temporary end to international law, at least until the power of the Roman Catholic Church became established in Western Europe. In their treatises and codifications of canon law, Christian religious jurists frequently gave opinions on rules of warfare and conduct among nations, basing their opinions and decisions upon general rules of Judeo-Christian ethics and using the ius gentium of the Roman law as a “law of nations” while ignoring its original purpose as a kind of private international law governing conduct between and among individuals of differing racial, ethnic, and national origins.

Toward the end of the Renaissance, Albericus Gentilis (1552–1608), the lawyer son of an Italian physician who as a Protestant lived and worked in England, insisted not only on a just cause for war, but also on its just conduct. Gentilis maintained that certain methods of warfare should be proscribed, among them the use of assassins, poison, magic arts, serpents, and savage beasts; but he sanctioned the use of spies (at their own risk), elephants, horses, and dogs. He sanctioned the destruction of fortress towns, but was against useless destruction of temples, statutes, and fruit trees, except in retaliation. While the civilian population was to be inviolate and prisoners were not to be put to death, anything done against barbarians, however, seemed lawful to him.

Hugo Grotius (1583–1645) in his De Jure Belli et Pacis brought the modern world its basic principles of international law. He accepted the Roman-based argument that rules which bind individuals bind nations. It appears that Grotius became interested in international law because of the barbarity with which the religious wars of his generation were being waged: “I saw prevailing throughout the Christian world a license in making war of which even barbarous nations would have been ashamed; recourse to arms being had for slight reasons or no reason; and when arms were once taken up, all reverence for divine and human law was thrown away, just as if men were thenceforth authorized to commit all crimes without restraint.”

Grotius did his best to impress the world with the necessity for a higher standard of conduct in warfare, but another Dutchman, Cornelius Van Bynkershoek (1673–1743) did not give much weight to abstractions predicated on “natural law” and gave his attention almost exclusively to positive law and to actual practice. He noted that the necessities of war permit almost any method, and that while the human virtues are noble, they cannot always be insisted upon.

It was during the last half of the nineteenth century that formal rules of war were established in declarations signed by some national states and tacitly accepted by others. The first of these codes was the Declaration of Paris in 1856, which covered much of the law of warfare at sea. In 1864, the Geneva Convention legislated on the treatment of wounded soldiers and in 1868 the Declaration of St. Petersburg legislated on the use of explosive or inflammable projectiles. An American code of warfare had been prepared for the United States government by Francis Liebet during the Civil War. It gave instructions to officers in the field and formed the basis of the work of the Brussels Conference called by the Russian government in 1874 to consider the conduct of war. The conference failed because the British Government refused to ratify the Convention it established, although many of the principles laid down at the Conference were later adopted. The Declaration of Brussels contained the principle that “the laws of war do not concede to belligerents an unlimited power with reference to the choice of means of injuring the enemy.”

There followed a series of conventions and declarations of various peace conferences, starting with the First Peace Conference of 1899 called by the Czar of Russia. Its important Conventions were ratified by almost all the powers. The Second Peace Conference of 1907 revised the Conventions of 1899. Successive Hague Declarations covered the use of dumdum bullets; missiles ejected from balloons; gas; certain principles of sea warfare; the opening of hostilities; the status of enemy merchantmen at the outbreak of hostilities; conversion of merchantmen into ships of war; the laying of automatic mines; bombardment by naval forces; restrictions on the right of capture in maritime warfare; and the rights and duties of neutrals.

After World War I there were a number of conferences looking toward further international “legislation” on the rules of warfare, and in 1924, at the insistence of the Assembly of the League of Nations, the Council created the Committee of Experts for the Progressive Codification of International Law. All of this work accomplished little and there was no general acceptance of the conventions.

The Rules of War

It has been said that “the law speaks too softly to be heard amid the din of arms.” Before World War I the rules of warfare were to a large extent well defined and clear. Most of them could be found only slightly modified in the manuals issued by the War Department of the United States at the beginning of World War II. Underlying these rules was the basic principle of military necessity which permitted a belligerent to apply any amount and any kind of force to compel complete submission of an enemy, except as limited by two other principles; humanity and chivalry. “The right of belligerents to adopt means of injuring the enemy is not unlimited,” said the Rules of Land Warfare. As far as specific weapons were concerned, the nations had not come to a full agreement on the propriety of many. Poison gas was proscribed only as a result of World War I and even then not by unanimous agreement of the powers.

As the era of the United Nations dawned in the afterglow of Hiroshima and Nagasaki many scholars began to admit that discussions of the rules of warfare may have become academic, since to commence a war would be the gravest of international crimes and the nation which brings on a war will be deemed an international criminal, condemned in advance, and branded an outlaw throughout the civilized world. Since neither the criminal nation nor its criminal leaders can expect worse punishment for additional acta against humanity than for the crime of commencing a war, all that will save them from dire punishment will be victory, by whatever means. Faced with the probability of ruthless and total war on the part of the “criminal” nation, the other nations need not be bound by any rules of chivalry or considerations of humanity. In the “total war” that has become a unique phenomenon of this century, it is argued, the old rules of international law have no serious place. As a result of the acquiescence of all the civilized nations of the world after World War II, precedent now exists for the following as the new rules of warfare:

1. Any type of weapon may be used.
2. Unrestricted use of submarines is permitted.
3. Bombing of civilian populations is permitted.
4. Devastation of non-military cities is permitted.
5. Upon the conclusion of hostilities and the annexation or occupation of territory by the victors, the local population may be expelled and its property confiscated.
6. After the hostilities have ceased, the victor may continue the devastation of occupied territory.
7. The victor may take as booty, and in lieu of reparations, whatever may be useful to its economy or may impair the military or competitive economic potential of the defeated country.
8. Private nonmilitary property of enemy civilians may be confiscated at will, wherever found, after hostilities have ceased.
9. The victor may retain prisoners of war as human reparations for such period as it sees fit.
10. After the war has been concluded, under rules established by the victors and before a court of their own representatives, the victors may try military, government, and industrial leaders of the vanquished nation, for any crimes designated “war crimes” by the indictment, whether ex post facto or not; and the accused has no appeal from the judgment.

Whether these concededly immoral (at least to those schooled in the Judeo-Christian tradition) rules have become part of our international way of war because Adolph Hitler drove us to accept them and we cannot “turn back the clock to a more civilized time,” or whether they represent a grudging acceptance of the way things will be whether civilized people legislate otherwise or not, is immaterial. These are the rules of war today or until the conclusion of World War III.

Those who condemn the use of “chemical” and “biological” weapons in warfare are really seeking to return to the days of champions and single combat. Chivalry and humanity may have been the public manifestations of the medieval mutual self-interest among the knights and mercenaries who were the principle combatants, but so long as the specter of “total war” haunts the world today, any weapon which is appropriate to the military objectives of a belligerent is going to be used. In the case of the “total war” practiced by revolutionaries and terrorists, “chemical and biological” weapons are likely to become the rule rather than the exception, since the philosophy of terror and revolution is based on the premise that the end sought justifies any means which may be used to achieve it.

Perhaps the solution to our problems is to recognize that “total war” or an “all out” effort to destroy an entire population or even an entire army is economically counterproductive. Perhaps we should realize that the “power” behind world leaders—the real basis for all political power throughout the remainder of this century—is the technological expertise and economic resources of a few—500 or less—essentially stateless, multinational, transnational, conglomerate corporations for which “total” war would be an economic catastrophe.

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Herbicides in Vietnam—

If Chemical Defoliation is Chemical Warfare, Who are the War Criminals?

Many have been quick to indict the United States as a nation for the use of herbicides during the war in Vietnam. Such use has been denounced by a majority of the member states of the United States in General Assembly Resolution 2603 A (XXIV) of 16 December 1969 extending the Geneva Protocol of 17 June 1925 to herbicides, and its seems to have been the intention of the 80 states signing the Resolution to assure that in the future defoliation will again be accomplished by heavy artillery and napalm, both of which are “acceptable” weapons of war today. Nevertheless, the blame, if any, for the use of chemical defoliants in Vietnam must be laid upon the officers and directors of the multinational, conglomerate, chemical corporations responsible for manufacturing, formulating, advertising, marketing, and promoting their use without regard to their long-term toxicity to human beings or the awesome environmental damage that would be inflicted upon an ecologically fragile region.

The corporate defendants in the Agent Orange litigation: the multinational, conglomerate chemical companies that advertised, promoted, marketed, and sold the dioxin-contaminated chemical defoliants to the Department of Defense during the Vietnam War, have disinterred the defenses raised by I.G. Farben and Krupp at Nuremberg after World War II: they were only following orders from the government and making what the government specified. This “government contractor immunity” defense will be tried on 13 June 1983 in the United States District Court for the Eastern District of New York, Long Island Division, by Order of U.S. District Court Judge George C. Pratt. At that time, the culpability for the use of chemical defoliants, if there is to be culpability for such use, will be determined by a jury. [Note: The issue was never tried. The Agent Orange case, MDL–381 was settled on May 4, 1984.]

The chemical companies will attempt to establish by a fair preponderance of the substantial credible evidence that the government of the United States is responsible for the specifications of the chemical defoliants that turned out to be so toxic to American soldiers, and the cause of such ecological devastation in Southeast Asia. The chemical companies seek to establish, as a matter of law, that knowledge of any employee of the federal government, no matter how anecdotal or incidental, about the possible hazards associated with the use of herbicides as chemical defoliants in Vietnam is imputable to the President of the United States, the Secretary of Defense, and the Secretary of State, the three political officials generally conceded to be responsible for and with the authority to select the use of particular herbicides as chemical defoliants in Vietnam.

The Vietnam combat veterans, their deformed children, and the survivors of those veterans who have died since the war, contend that the evidence will clearly establish that no United States government official with the authority to select particular herbicides as chemical defoliants for use in Southeast Asia shared the knowledge of the chemical companies about the toxicity of one phenoxy herbicide, 2,4,5-T, and that the chemical companies failed to warn the Department of Defense during the war about the extent of the dioxin contamination of this herbicide that had been generally regarded as safe until late 1969.

Whatever the theoretical controversy over criteria for characterizing particular chemicals, such as the components of the herbicide rainbow, Agents Orange, Purple, Pink, Blue, and White, as weapons of chemical-biological warfare, national culpability requires national intent. Before a national intent can be inferred from mere use of a product that eventually is identified as a definite cause of serious, permanent, and irreparable ecological damage and a contributing cause of human injury, genetic damage, and death, it must be determined that those who made the determination to use the product were fully aware of its effects. Such was not the case during the war in Vietnam. Only the chemical companies which manufactured the products were fully aware of their toxic potential. Not only did they fail to warn the Department of Defense during the war, they failed to inform the Veterans Administration or our returning servicemen after the war. Today those companies responsible for the poison rainbow seek to blame the American government rather than acknowledge their own responsibility.

Should the U.S. continue research in chemical-biological warfare agents?

Other than a few naturally occurring elements such as oxygen and nitrogen in the air we breathe, and a few naturally occurring compounds such as silicon dioxide (common sand) and the water we drink, “chemicals” do not just exist, they are used. Chemicals are used for food, clothing, shelter, amusement, and yes, as weapons of war. The question which must be answered by all rational human beings is, “Are particular chemicals: herbicides; used in particular ways: applied by aircraft over a large area; for a particular purpose: jungle defoliation; under particular circumstances: during a war marked by jungle ambush; being used wisely?

“Better things for better living through chemistry” is not just the advertising slogan of a transnational, conglomerate corporation. It is an accurate statement of fact; one of the facts of life in the waning years of the twentieth century. All the rhetoric notwithstanding, the question is not whether “chemicals” are “bad,” but whether the effects of particular chemicals used in a particular way, for a particular purpose under particular circumstances, are acceptable. Can the effects of certain chemicals be tolerated in a crowded world with pretensions toward civilization? Before this question can be answered, however, we need information—meaningful data—about the effects of those chemicals, and that calls for testing: adequate testing; intellectually honest and aggressive testing; tests that look for trouble, not tests that try to cover trouble with a cloak of obfuscation.

There is a recurrent myth that has been proselytized with all the fervor of TV evangelism: antibiotics will take care of any bacterial infection; we need never worry about the plague again; the plague has been conquered by medicine; even virus infections will somehow be cured. When you look at the Hong Kong flu pandemic that concluded the decade of the sixties, you have a foretaste of what can really happen. Twenty to thirty percent of the world’s population was infected by this virus. Fortunately, it was not particularly lethal, except to the very old, the very young, and those with compromised respiratory systems.

There are very few features that distinguish the spread of a natural epidemic from the effects of a concerted attack on a region with biological weapons. It can be argued, therefore, that a well planned and vigorously implemented public or community health program is the best defense to biological warfare.

Let us not relearn the lessons derived from the tragic experience of Pearl Harbor. Let us not recklessly dismantle the technology that is our “CBW Establishment.” If we are to beat swords into ploughshares let us not dismantle the laboratories at Fort Detrick and Edgewood. Let us, instead, put those laboratories to the ends of peace, albeit as part of our national defense effort.

We have the opportunity to combine many motives in a constructive way and further a very high level of chemical and biological research dedicated to developing the defensive capability necessary to assure our people that some aggressive agent—be it world power or terrorist band—cannot loose the apocalyptic horsemen upon our nation and the world. National defense may be the justification for the research, but improvement of the quality of life throughout the world can be the result. To develop the defensive response to chemical and biological warfare is to cure disease and vanquish pestilence.

Yannacone, Victor John, jr., “Chemical Defoliation or Chemical Warfare?” International Regulation of Chemical and Biological Warfare Symposium, 13 Toledo Law Review (summer, 1982) 1260–1270.