DEPARTMENT OF THE ARMY PAMPHLET 27-1 00-24 MILITARY LAW REVIEW Minor Symposium Biological Warfare-Two Views UNITED STATES USE OF BIOLOGICAL WARFARE Major William H. Neinast THE STATUS OF BIOLOGICA4LWARFARE IN INTERNATIONAL LAW Colonel Bernard J. Brungs Article THE SOLDIER'S RIGHT TO '4 PRIVATE LIFE Lieutenant Colonel Arthur A. Murphy Survey of the Law AhTNUAL SUPPLEhlENT TO THE SURVEY OF MILITARY JUSTICE: THE OCTOBER 1962 TERM OF THE U.S. COURT OF MILITARY APPEALS HEADQUARTERS, DEPARTMENT OF THE ARMY APRIL 1964 TAG0 8162B PREFACE The Military Law Review is designed to provide a medium for those interested in the field of military law to share the product of their experience and research with their fellow lawyers. Articles should be of direct concern and import in this area of scholarship, and preference will be given to those articles having lasting value as reference material for the military lawyer. The Military Law Review does not purport to promulgate De- partment of the Army policy or to be in any sense directory. The opinions reflected in each article are those of the author and do not necessarily reflect the views of The Judge Advocate General or the Department of the Army. Articles, comments, and notes should be submitted in duplicate, triple spaced, to the Editor, Military Law Review, The Judge Advocate General’s School, U.S. Army, Charlottesville, Virginia. Footnotes should be triple spaced, set out on pages separate from the text and follow the manner of citation in the Harvurd Blue Book. This Review may be cited as 24 MIL.L. REV. (number of page) (1964) (DA Pam 27-100-24,l April 1964). For sale by the Superintendent of Documents, United States Government Printing Office, Washington, D.C. 20402, Price : $75 (single copy). Subscription price : $2.50 a year ; $75 additional for foreign mailing. i THOMAS EDWARDS Judge Advocate General 1782-1783 Colonel Thomas Edwards was born in Boston, Massachusetts, on 1 August 1753, the son of John and Abigail Edwards. In 1760 he entered Boston Latin School and upon his graduation there- from entered Harvard College in 1771. Subsequent to his gradua- tion from Harvard College he read law in the office of John Williams of Boston, then a leading practitioner in Massachusetts. He was later admitted to practice in Boston. An ardent patriot, Edwards soon joined the cause of the revolu- tion and on 31 May 1776 was commissioned a lieutenant in the 16th Massachusetts Infantry. The 16th Massachusetts Infantry was considered to be one of the finest regiments of the Continental Army. During hostilities Colonel Edwards took part in the Battles of Monmouth and Springfield, New Jersey, and Quaker Hill, Rhode Island. When Colonel John Lawrence resigned his position as Judge Advocate General of the Army at the close of the War of Inde- pendence, no successor was immediately found for him. On July 9, 1782, Congress elected James Innis of Virginia to the position, but Innis declined it. On July 11, 1782, Congress increased the pay of the Judge Advocate General, fixing it at $75.00 per month, and adding $12.66 per month for subsistence, and an additional $6.66 per month for a servant to whom would also be allowed rations and clothing equivalent to a private in the Army. Besides all this, a two horse wagon and forage for two saddle horses were permitted. On October 2, 1782, Congress elected Lieutenant Thomas Edwards, then of the 9th Massachusetts Infantry, as Judge Advocate General of the Army, with the rank of colonel. Colonel Edwards retained his position as Judge Advocate Gen- eral of the Army until November 3, 1783, when he resigned his position and returned to the practice of law in Boston. In June 1784 the remnants of the Continental Army were dis- banded and the permanent standing Army limited to 80 enlisted men and their officers. This tiny force was expanded somewhat in succeeding years but no successor to Colonel Edwards wag appointed prior to the adoption of the Constitution of the United States. Following his return to civilian life, Colonel Edwards held various municipal offices in the city of Boston. According to The iii Memadids of the Massachwetts Society of the Cincinnati (1931), he was “. , . a useful and exemplary citizen and a man of sterling integrity of character.” He served as Secretary of the famous Society of the Cincinnati from 1786 until his death in 1806. He was survived by seven children, the progeny of two marriages. Pam 27-100-24 PAMPHLET HEADQUARTERS DEPARTMENT OF THE ARMY NO. 27-100-24 WASHINGTON, D.C.,1 April 196-4 MILITARY LAW REVIEW Page Minor Symposium: Biological Wa.rfare-”wo Views United States Use of Biological Warfare Major William.. H. Neinast __________________ 1 The Status of Biological Warfare in International Law Colonel Bernard J. Brungs_______-__________ 47 Article: The Soldier’s Right To A Private Life Lieutenant Colonel Arthur A. Murphy ________ 97 Survey of the Law: A Supplement to the Survey of Military Justice Captain Charles W. Schiesser and Captain Michael F. Barrett, Jr.____________ 125 AGO 81628 BIOLOGICAL WARFARE-TWO VIEWS The possibility of the use of biological warfare in any future war raises important questions about its legality. Presented herein are two divergent views as to the legality of biological warfare under present international law and as to what that legality ought to be. While The Judge Advocate General’s School does not adopt or endorse either position, they are presented here with a view toward stimulating legal research and analysis in this field and with the hope that additional inquiry into the subject may be made by international lawyers, both military and civilian. The importance of the questions discussed here cannot be over- stated. TNITED STATES USE OF BIOLOGICAL WARFARE* BY MAJOR WILLIAM H. NEINAST** I. INTRODUCTION The ability to engage in biological warfare is, today, a reality.’ Discussions on biological warfare are available in the United States in both technical and non-technical materials. The ethical, the legal, and the practical aspects are favorite topics of dis- cussion. These topics are approached in one of three ways. * This article was adapted from a thesis presented to The Judge Advocate General’s School, US. Army, Charlottesville, Virginia, while the author was a member of the Eleventh Career Course. The opinions and conclusions pre- sented herein are those of the author and do not necessarily represent the views of The Judge Advocate General’s School or any other governmental agency. ** JAGC, U.S.Army; Office of the Staff Judge Advocate, Headquarters, 111 U.S. Army Corps and Fort Hood, Fort Hood, Texas; A.B., 1950, University of Texas; LL.B., 1962, University of Texas; admitted to practice in the State of Texas, and before the United States Supreme Court and United States Court of Military Appeals. 1 See, e.g., U.S. DEP’T OF ARMY FIELD MANUAL NO. 3-5, TACTICS AND TECHNIQUES OF CHEMICAL, BIOLOGICAL AND RADIOLOGICAL (CBR) WARFARE (1958) [hereafter cited as FM 3-51, para 116; US. DEP’T OF ARMY, TECH- NICAL MANUAL NO. e3-216, MILITARY BIOLOGY WARFARE AGENTS (1956) [hereafter cited as TM 3-2161, paras. 3, 7. “Biological warfare” is used in this article in preference to “bacteriological warfare.’’ The latter, or “germ warfare,” would be limited to the use of bacteria. Biological warfare, how- ever, includes the use of bacteria, other micro-organisms, higher forms of life, such as insects and other pests, and the toxic products of these agents. AGO 8162B 1 24 MILITARY LAW REVIEW First, some consider biological warfare so horrible, so terrify- ing, that it should not be allowed under any circumstances.2 Secondly, others think that biological warfare has been grossly overrated. It is argued that biological warfare is directed toward temporary incapacitation rather than the permanent disability or death which results from more conventional weapons, and thus the arguments on the legality or morality of this type of warfare are regarded as exaggerated.3 This second position is also main- tained by those who argue that the means of waging biological warfare are ineffective weapons against which there are effective defenses, and therefore biological warfare has no military utility. 2 “Any country which really desires peace would limit rather than enlarge the means of human slaughter. This applies with special force to a destruc- tive force which has such frightful possibilities.” So spoke Rep. Burton of Ohio before the House of Rep. of the U.S. on Jan. 19, 1927 (68 CONC. RFX. 1969). He was speaking in behalf of his proposed amendment to a War Dep’t appropriations bill to reduce the amount of money being appropriated for the Chemical Warfare Service to “produce, manufacture, and test chemical war- fare gases or other toxic substances.’’ The remarks were directed primarily at the US’S failure to ratify the Geneva Gas Protocol of June 17, 1925. “But the surest clue to the state of world morality is to be found in the attitude toward the horror-weapons, and in the failure to take any effective measures agaidt their spread. But we do know that there has been much talk of . disease germs to bring the terrors of pestilence to entire popula- tions. IT1 he fact remains that they , . are mentioned as if they repre- sent no more than new methods of exterminating houseflies . there appears to be little realization that they are as antihuman, as diabolical as the Satan of old demonlore could ever have conceived. COBLENTZ, FROM ARROW TO ATOM BOMB 460 (1953). The Same author in 1927 predicted the use of ‘pestilence breeders of bacteriology’ in the ‘next war.’ ” COBLENTZ, MARCHING MEN 450, 454 (1927).