EXCERPTS OF TESTIMONY BY DOUGLAS J. FEITH, ESQUIRE, Former Deputy Assistant Secretary of Defense, before THE SENATE FOREIGN RELATIONS COMMITTEE

Washington, D.C.

21 March 1996

THE CASE AGAINST RATIFICATION OF THE C.W.C.⁽¹⁾

Proponents of the new [Chemical Weapons Convention]
treaty are right to warn us against ignoring or
belittling the chemical weapons problem. Nor should we
overlook or forego the role that sensible arms control
law can play in managing the problem. One can oppose the
CWC without being pro-chemical weapons or anti-arms
control. I am neither, but I do oppose this treaty
because I have concluded that it would accomplish
the opposite of its intended purpose. It would make
chemical warfare in the future more rather than less
likely, not the first time that a well-intended idea
would have proved harmful to the very interest it aimed
to promote.

To summarize my view of the CWC: No realistic
person expects the new treaty actually to rid the world
of chemical weapons, not even from all the countries that
ratify the treaty. We cannot count on knowing
whether countries are keeping or building chemical
arsenals clandestinely, even if those countries become
treaty parties. Some countries, both hostile and
untrustworthy, inevitably will sign on to the treaty but
not comply with it. This is a serious danger.

Though it will not be effective, the treaty will be
talked of as a comprehensive, global ban on the
possession of chemical weapons. It will commonly be
viewed as having reduced the worldwide threat from such
weapons. The CWC will therefore tend to reduce
concern about a problem that deserves increased concern.
Reduced concern translates into reduced investment in
defenses against chemical weapons. This, in turn, will
result in greater incentives for outlaw actors to use
chemical weapons against their inadequately defended
enemies among the law abiding countries.

The world does not need a large, new international
bureaucracy under the CWC supervising an ineffective but
costly inspection regime. What it needs is for
the civilized powers to muster will and creativity to
agree on penalties against states that violate existing
law against chemical weapons use. The CWC makes
complex new law when proper enforcement of the simple old
law would accomplish much more. The new treaty diverts
attention from the venerable but abused Geneva Protocol
of 1925, which has repeatedly been violated with
impunity. An unverifiable, ineffective, unenforceable
treaty like the CWC does not advance the cause of world
peace based on law. Rather, whatever good intentions may
exist in the background, it tends to undermine
respect for arms control and for international law in
general. If we want to use law as a weapon against
chemical weapons, we should reject the CWC and shore up
the Geneva Protocol.

The ban will influence and constrain primarily the
law-abiding countries of the democratic world. It will
tend to lessen fear of chemical weapons without lessening
the danger. It will blunt the drive to develop
defenses. This is not constructive and will increase the
military incentives for bad faith regimes to employ
chemicals in war.

Verification

It is bad practice for the United States to enter
into an arms control agreement that cannot be verified.
Joining in such an agreement implies either that we trust
the other parties, or, if we do not trust them all, that
we can satisfactorily monitor those of concern to us. For
the U.S. government to become party to an unverifiable
national security treaty with hostile and untrustworthy
states is misleading and dangerous. In the case
of the CWC, it is dangerous specifically regarding the
chemical weapons threat to us and our allies, but also as
a precedent for other unverifiable arms control
agreements.

When addressing the CWC’s unverifiability, the
treaty’s supporters often remark that there is no such
thing as “perfect” or “airtight”
verification. It is important, therefore, that the
verification objection be clarified. The problem with the
CWC is not that our intelligence agencies would be able
to detect only 90% or 80% or even 50% of significant
violations. The issue is not a quarrel over probabilities
or over how much confidence is enough. The
problem is flat and stark. The countries now of greatest
concern to us — the People’s Republic of China, North
Korea, Syria, Iraq, Libya and Iran — could become
parties and then violate the treaty knowing that they can
produce and stockpile chemical weapons without detection.

No U.S. intelligence official will testify that we can
be confident of detecting a violation by a country intent
on concealing the violation. The issue is not that we
should be highly confident rather than moderately
confident. The point is that our intelligence agencies
cannot be confident at all, under any standard,
that we would know if the treaty were being violated by
the kinds of regimes we worry about, those that run
relatively closed societies. We have no systematic way of
knowing whether a significant violation is occurring
there. If we could get information from a defector or
other local dissident, then we would be lucky. But
a treaty cannot be said to be verifiable because we might
get lucky.

When asked about the impossibility of verification,
treaty proponents tend to change the subject, saying that
we shall know more about the chemical weapons problem
with the treaty than without it. They say the treaty’s
verification regime is the most lengthy, complex and
intrusive of any arms control agreement in history. What
they cannot say, however, is that the verification regime
will give us a substantial chance (let alone a
likelihood) of detecting a concealed violation.

Challenge inspection is a tool of limited
utility…for a number of reasons: First of all, if we
cannot detect the violation in the first place, the
challenge inspection provision is irrelevant. Secondly,
if we have detected the violation by other means and make
a challenge, the wrongdoer has ways to impede the
inspectors and avoid embarrassment. The CWC’s challenge
inspection provision is not tightly constructed and
affords a challenged party substantial room for maneuver.

Whether a ban on chemical weapons possession can be
verified effectively is a matter of longstanding
controversy. Events in recent years, however, have taken
the matter beyond debate….

The United Nations Special Commission on Iraq (UNSCOM)
inspectors have had more extensive and thorough access in
Iraq over a greater period of time than inspectors would
have in any country under even an extreme reading of the
CWC. Nevertheless, after three, four and five years of
persistent (and courageous) on-the-ground investigation,
UNSCOM continually made (and makes) significant new
discoveries about Iraq’s chemical and biological weapons
activities. Years of intense scrutiny of a single
country that was compelled to cooperate did not suffice
to allow the inspectors to uncover all the major
elements, let alone the finer points, of the Iraqi
programs. Under the circumstances, one can hardly
maintain that inspections under the CWC, burdensome
though they will be, can ensure effective monitoring of
the ban.

Ambassador Rolf Ekeus of Sweden, who
heads UNSCOM, spoke recently in Washington and was asked
to relate his experiences in Iraq to the issue of CWC
verification. The ambassador, who helped negotiate the
CWC, remains a supporter, but he stated candidly and
categorically that the new treaty would not be
effective against countries like Iraq that act in bad
faith and clandestinely.

If the CWC will not be effective against countries
like Iraq, it is reasonable to ask what is the need for
it. If we want to ensure that countries like the United
States, Canada and Britain do not have chemical weapons,
we can achieve this without a burdensome treaty and a new
international bureaucracy. It can be done by the
friendly, democratic countries themselves, acting jointly
or in parallel, but without treaties or other elaborate
arrangements. The CWC’s purpose is precisely to
constrain hostile, secretive, non-democratic countries
like Iraq and if it clearly will not do so, then the
treaty has no reason for being.

…Iraq’s widely-publicized flouting of the Geneva
Protocol led, a few months later, in January 1989, to the
convening in Paris of a large international conference to
do something to uphold the old treaty. But the conference
could not agree upon any sanctions against Iraq. It
did not resolve to censure Iraq. Indeed, it could not
pass a resolution even mentioning Iraq by name. The
conference designed to uphold the Geneva Protocol
succeeded rather in mocking it. This damaged the
effectiveness of the treaty and of arms control and
international law in general. This failure
exposed the essence of the problem of chemical weapons
arms control, which is not a lack of law, but the failure
to enforce the law already on the books.

Enforce the Geneva Convention

Rather than impose on our government, industry and
people the costs and constraints of the CWC, and the new
legislation and regulations required for implementation,
all of which will be burdensome without being effective, U.S.
officials could more constructively direct their energies
to devising means to enforce the existing Geneva Protocol
ban on chemical weapons use — putting teeth in the
Protocol. This would be a worthy U.S. arms control
initiative.

The non-use treaty makes much more sense than a ban on
possession. It is inherently easier to verify because the
victim has incentives to prove the violation to the
world. It does not require elaborate, bureaucratized
verification measures. And, as discussed earlier, there
should be greater general outrage in the world, and
therefore a stronger political basis, for punishing
violations of a non-use treaty than of a treaty that bans
stockpiling. No approaches to enforcing the Geneva
Protocol, however, have ever been agreed upon in advance.
Our policymakers and diplomats should, I
recommend, attend to this, proposing methods, for
example, by which the assets abroad of violators of the
Geneva Protocol could be seized to satisfy victims’
claims adjudicated in an appropriate forum. This
approach, if U.S. officials worked it vigorously in the
name of upholding the law, could actually help control
the chemical weapons problem and strengthen norms against
such weapons.

If the United States (and others) do not ratify the
CWC, there will be less illusion about the actuality and
gravity of the chemical weapons danger facing the United
States and our allies. A clear view of the unhappy
realities in this area should lead us to invest in
various defensive measures — such as protection gear,
detection equipment and medical treatment capabilities,
and active measures such as methods of intercepting
missiles that could carry chemical warheads. This,
together with a serious effort to strengthen the 1925
Geneva Protocol, would affect the cost-benefit
calculations of potential chemical weapons users so as to
discourage use. U.S. ratification of the CWC,
however, would have the opposite effect, and thus,
despite the good intentions of many of those who produced
the treaty, create conditions that would make chemical
warfare more rather than less likely in the future.