permit states party to avoid (by reservation or in any other way) the same obligations toward non-parties. Therefore the Soviets could not logically rely on the limits in the Protocol, or their 1928 reservation, to defend the first use of chemical weapons in Afghanistan.35 In an analogous case, the Nuremberg Tribunal convicted German defendants of violating various provisions of the Hague Convention of 1907 on the laws of land warfare-even though the Convention by its terms did not apply by reason of the fact that the conflict involved states not party to the Convention-on the basis that the provisions in question had become a part of customary international law.36

In any event, the Soviets have not asserted that they are entitled to use chemical weapons in Afghanistan, and it seems unlikely that they would attempt to defend their actions on that basis. In fact, recent Soviet responses to these reports flatly deny the use of chemical agents and reiterate Soviet observance of the prohibition on the use of chemical weapons.37

Therefore, the more immediate questions would appear to be: (1) whether we have adequate evidence. . . of the use of lethal or incapacitating chemical weapons in Afghanistan; and (2) whether our major allies share our views as to the applicability of the rule of customary law to the Afghan conflict.

Also, the rule under both the Geneva Protocol and customary international law is only a prohibition on first use; accordingly, the prohibition would not apply in a particular conflict to a state against whom chemical weapons had been used. Furthermore, although the United States does not regard the prohibition as applying to riot control agents, this view is not shared by the great majority of states (including the Soviets), and these states would presumably regard themselves as being entitled to use chemical agents (including lethal agents) in response to any use of riot control agents against them.38

3. Reported Use of Chemical Weapons in Kampuchea

In December 1979, Administration witnesses testified before a House Foreign Affairs Subcommittee that the United States had since late 1978 received unconfirmed reports that Vietnamese forces in Kampuchea had used artillery rounds containing chemical agents having both lethal and non-lethal effects.39

The legality of such use of lethal or incapacitating chemical weapons in Kampuchea would depend on: (a) whether the conflict in Kampuchea is the type of conflict to which the Protocol or the rule of customary law applies; and (b) whether the applicability of these rules is affected by the fact that neither Vietnam nor Kampuchea has ever adhered to the Protocol [see, post].

a. Type of conflict. The United States has characterized the Kampuchean conflict as an act of aggression by Vietnam, in which Vietnamese forces have invaded and occupied large parts of Kampuchea, attacked and driven the forces of the existing regime (under Pol Pot) into the countryside, and installed a puppet regime in Phnom Penh.40 Similarly, the U.N. General Assembly has characterized the conflict as "armed intervention by outside forces."41 As suggested in the previous section, this invasion and occupation

of one country by the armed forces of another clearly constitutes an armed conflict of the type to which the prohibition on the use of chemical weapons would apply.

b. Applicability to Vietnamese actions in Kampuchea. France (the Depositary to the Protocol and the former colonial power in Indochina) evidently does not consider either Vietnam or Kampuchea presently to be a party, either by succession to French adherence or by accession in its own right.42 For its own part, the United States would not consider a newly independent country to be bound by the treaty obligations of its former colonial power in the absence of some affirmative indication that it considers itself to have succeeded or acceded to those obligations.43 As a result, the United States does not consider either Vietnam or Kampuchea to be a party to the Protocol.44 Nonetheless, as indicated in the previous sections, it is our view that the prohibition on first use in war of chemical weapons has become a part of customary international law binding on all states. As a result, we would consider Vietnam (and any purported new government of Kampuchea) to be bound by this prohibition.

As in the case of Afghanistan, the immediate questions are: (1) whether we have adequate evidence . . . of the use of lethal or incapacitating chemical weapons in Kampuchea; and (2) whether our major allies share our views as to the applicability of the rule of customary law to the Kampuchean conflict.

4. Reported Use of Chemical Weapons in Laos

The evidence of the use of chemical agents in Laos appears to be substantially stronger than in the case of either Afghanistan or Kampuchea. In the December 1979 House Foreign Affairs Subcommittee hearings, Administration witnesses stated we had received and investigated a number of reports of such use (having both lethal and non-lethal effects) by Vietnamese and Lao forces against the Hmong insurgents and tribal populations; and that, although we do not have "absolute proof" of these charges, the results of U.S. investigations "support the conclusion that some chemical agent or agents were being used in Laos during the period in question.

"45

As in the case of Vietnam and Kampuchea, Laos is not considered to be a party to the Protocol (either by succession to French adherence or accession in its own right),46 but would be bound by the prohibition on the first use of chemical weapons in war as a matter of customary international law.

However, it is not clear that the fighting in Laos constitutes a conflict of the type to which this prohibition applies. Apparently many of the Hmong tribesmen had fought on the side of the United States during the Indochina conflict, and after 1975 continued on their own (in remote highland areas) to resist the Pathet Lao forces (and their Vietnamese allies) which had taken power in Vientiane. Since 1975 Lao and Vietnamese forces have conducted military operations to suppress these insurgent elements and to forcibly resettle the Hmong population into areas where they may be more easily controlled.47

As indicated in a previous section, the Geneva Protocol and the customary law prohibition have generally been described as rules applying in international armed conflicts. It is more difficult here than in the case of Afghanistan or Kampuchea to characterize the conflict as an international armed conflict, since (1) we recognize and maintain diplomatic relations with the government in Vientiane, and have not characterized it as a Vietnamese puppet; (2) Vietnamese forces appear to be in Laos with that government's consent; (3) the elements fighting against the Lao and Vietnamese forces appear to be tribal insurgents and not retreating forces of a government formerly in power; and (4) the fighting itself is of a more localized and intermittent character, and on a more limited scale, than in either Afghanistan or Kampuchea.

There are at this time no strong precedents establishing that the prohibition on chemical weapons would be regarded as applying to a conflict of this character. The alleged use of poison gas in the early 1960's by Egyptian forces fighting on the side of the Yemen government, against insurgent forces allegedly supported by Saudi Arabia, was widely condemned by the United States and others as a violation of international law; but it was not clear whether these condemnations were based on a judgment that the conflict was international in character, or on the assumption that the prohibition on chemical weapons applied to non-international conflicts as well, or simply on the alleged targeting of civilians for attack.48

5. Other Rules of Law in Armed Conflict

Whether or not the prohibition on chemical weapons applies to these conflicts, the reported uses of these weapons may violate other rules of international law applicable in armed conflict, particularly those contained in the four 1949 Geneva Conventions for the protection of war victims.49 Specifically, these reports suggest (with varying degrees of reliability) that large numbers of civilians have been killed or injured as a result of the use of chemical agents for the purpose either of attacking civilians as such or of attacking military objectives in civilian concentrations such as towns or villages.50 Such attacks may, in an international armed conflict, violate one or more of the following:

-the prohibition on making the civilian population as such, as well as individual civilians, the object of attack;51 -the prohibition on acts or threats of violence whose primary purpose is to spread terror among the civilian population;52 -the prohibition on attacks which may be expected to cause incidental loss of civilian life or injury to civilians which would be excessive in relation to the concrete and direct military advantage anticipated;53 and

-the prohibition on acts of violence or reprisals against "protected persons" under the Fourth Geneva Convention, including the civilian population of occupied territories.54

In addition, such attacks may violate the fundamental prohibition, which applies even in conflicts of a non-international charac

ter, on acts of violence against persons who do not take a direct part in hostilities.55

The application of these rules depends, however, on the precise circumstances of the acts in question. Therefore, more detailed information and credible evidence would be required to establish a violation of these prohibitions; and the mere fact that civilians may have been present in a general area in which chemical agents may have been used, and may have suffered incidental injury as a result, would not in itself necessarily be sufficient to establish such a violation.

1 Declaration (IV,2) Concerning Asphyxiating Gases, reprinted in Scott, The Hague Conventions and Declarations of 1899 and 1907, pp. 225-26 (3d ed. 1918). In addition, Article 23 of the Regulations in the 1907 Hague Convention Respecting the Laws and Customs of War on Land (32 Stat. 2277; TS 539; 1 Bevans 631) contained prohibitions on "poison or poisoned weapons" and "arms, projectiles, or material calculated to cause unnecessary suffering"; and it has been suggested from time to time that these prohibitions would in themselves render unlawful the use of poison gas. See Thomas & Thomas, Legal Limits on the Use of Chemical and Biological Weapons, pp. 49-57 (1970).

2 See, Bunn, "Banning Poison Gas and Germ Warfare: Should the United States Agree?" 1969 Wisc. L. Rev. 375, reprinted in Hearings on the Geneva Protocol of 1925 before the Senate Committee on Foreign Relations, March 5-26, 1971, pp. 73, 121-22; Moore, Ratification of the Geneva Protocol on Gas and Bacteriological Warfare: A Legal and Political Analysis, 58 Va. L. Rev. 419, 430 (1972).

3 Treaty of Peace between the Principal Allied and Associated Powers and Germany; signed at Versailles, June 28, 1919; 2 Bevans 119.

4 Treaty Relative to the Protection of the Lives of Neutrals and Noncombatants at Sea in Time of War and to Prevent the Use in War of Noxious Gases and Chemicals, Feb. 6, 1922; 3 Redmond, Treaties, Conventions, Int'l Acts, Protocols and Agreements 3116.

5 See, Hearings on the Geneva Protocol of 1925, cited in note 2 above, p. 74; Moore, Ratification of the Geneva Protocol, cited in note 2 above, p. 433.

6 Signed in Geneva, June 17, 1925; entered into force for the United States, April 10, 1975; 26 UST 571; TIAS 8061; 94 UNTS 65.

7 The history of the Senate's consideration of the Protocol is summarized in Bunn, "Banning Poison Gas," Hearings on the Geneva Protocol of 1925, cited in note 2 above, p. 75.

8 See, Exec. M; 80th Cong., 1st Sess. (1947).

9 See, Bunn, "Banning Poison Gas," Hearings on the Geneva Protocol of 1925, cited in note 2 above, pp. 78-80; Moore, Ratification of the Geneva Protocol, cited in note 2 above, pp. 436-37. 10 8 Dept. of State Bull. 507 (1943).

11 For example, Assistant Secretary of State William B. Macomber, in a letter of Dec. 22, 1967 to Congressman Benjamin S. Rosenthal, stated that 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." Similarly, U.S. Ambassador to the United Nations Arthur J. Goldberg, in a letter of July 24, 1967 to Congressman Lester L. Wolff, stated that:

The United States position on this matter is quite clear and corresponds to the stated policy of almost all other governments throughout the world as reflected in the voting. UNGA Resolution 2162B of 1966 which condemned the use of poison gas in warfare. The use of poison gases is clearly contrary to international law ..

Hearings on the Geneva Protocol of 1925, cited in note 2 above, pp. 81-82.

12 See, Executive J (91st Cong., 2d Sess.), Aug. 19, 1970, p. VI. 13 The Senate's advice and consent was granted on Dec. 16, 1974; the only reservation adopted by the Senate preserved the right of the U.S. to retaliate in kind against any use of chemical weapons by an enemy State.

14 Statement of Thomas D. Davies (Assistant Director, U.S. Arms Control and Disarmament Agency), Hearing on Use of Chemical Agents in Southeast Asia Since the Vietnam War before the Subcommittee on Asian and Pacific Affairs of the House Committee on Foreign Affairs, Dec. 12, 1979, p. 49. The current U.S. Air Force Manual on the laws of war states that "the first use of lethal chemical weapons is now regarded as unlawful in armed conflicts." U.S. Dept. of the Air Force, International Law-The Conduct of Armed Conflict and Air Operations, AFP 110-31, p. 6-4 (1976). The current U.S. Army Manual does not address this point; however, on March 5, 1945, the Army Judge Advocate General expressed the opinion to the Secretary of the Army that “an exhaustive study of the source materials, however, warrants the conclusion that a customary rule of international law has developed by which poisonous gases and those causing unnecessary suffering are prohibited." 10 Int'l Legal Materials 1304 (1971). The current U.S. Navy Manual still contains material dating from 1956 which describes as "doubtful" and "difficult" the proposition that this prohibition is binding on all states. The Law of Naval Warfare, NWIP 10-2, par. 612b and note 6. [See, also, Whiteman, Digest of International Law, Vol. 10 (1968), p. 456.]

15 U.S. Arms Control and Disarmament Agency, 1971 Documents on Disarmament, p. 463.

16 See, Hearings on the Geneva Protocol of 1925, cited in note 2 above, pp. 85-86. (The U.S. did not, however, necessarily accept the fairness of these procedures or the correctness of their results.)

17 For example, UNGA Res. 2162 (XXI), Dec. 5, 1966; UNGA Res. 2603B (XXIV), Dec. 16, 1969.

18 UNGA Official Records, 1st Comm. (24th Sess.), 1717th Mtg., Dec. 10, 1969, pp. 4-5.

19 See, Hearings on the Geneva Protocol of 1925, cited in note 2 above, pp. 19-25.

20 26 UST 583; TIAS 8062.

21 See, U.S. Arms Control and Disarmament Agency, Arms Control and Disarmament Agreements (1977), pp. 121-23.