189. Memorandum From the Assistant Secretary of Defense for International Security Affairs (Gray) to the Secretary of Defense (Wilson)1
Problem:
To establish a Government policy with respect to the introduction of atomic ground delivery systems in connection with the modernization of U.S. equipment in Korea.
Discussion:
Paragraph 13 d of the Korean Armistice Agreement provides that the opposing sides shall “cease the introduction into Korea of reinforcing combat aircraft, armored vehicles, weapons, and ammunition; provided, however, that combat aircraft, armored vehicles, weapons, and ammunition which are destroyed, damaged, worn out or used up during the period of the Armistice may be replaced on the basis of piece for piece of the same effectiveness and the same type”. (The full text of paragraph 13 d is set forth at Tab A.)2
Very soon after the Armistice went into force, it became apparent that the Communists had introduced jet aircraft into North [Page 361] Korea, whereas they had no such aircraft there prior to the Armistice. Moreover, no report of such introductions was made to the Military Armistice Commission. The United States at this time construed the Agreement quite strictly and accused the Communists of violating the Armistice Agreement in this respect.
The United States has always adhered to a very strict and literal interpretation of paragraph 13 d. It has only introduced exact equivalents and it has reported all such introductions. As time has gone by U.S. weapons in Korea have become increasingly obsolete. Our commanders in the Far East have strongly recommended that they be permitted to introduce modern weapons and this recommendation has been under consideration for many months within the Government. The Joint Chiefs of Staff have strongly supported, from the military point of view, the recommendations of the field commanders.
It should be recalled that the State and Defense Departments agreed provisionally to suspend performance of our obligations to permit the operations of the Neutral Nations Supervisory Commission and the Neutral Nations Inspection Teams in the UN Command area. This action was taken because of the flagrant disregard by the Communists of this provision of the Armistice insofar as it applied in the Communist area of Korea. This action, moreover, was taken with the concurrence of our British Commonwealth Allies in Korea as is made quite clear in a letter dated May 5, 1956 from the Acting Secretary of State to the Secretary of Defense.3 In the same letter, it is stated that the Department of State concurs in the recommendation that General Lemnitzer be authorized to replace obsolete and worn out equipment by appropriate replacements on the theory that this can be accomplished legally within the terms of paragraph 13 d of the Armistice Agreement “as a matter of interpretation of the Agreement in the light of the actions of the other side”. It was further agreed that the UN should report all introductions made.
Following this understanding between the two Departments, a proposed replacement list was prepared in the Defense Department and submitted to the State Department in the form of a suggested cable to General Lemnitzer. A copy of the proposed cable is attached at Tab B.4 The list of replacement items and the theory on which the replacements would be made have been agreed between the two Departments in all respects except that the State Department is unwilling to agree to the introduction of the Honest John and the 280mm gun. The two items in dispute are dual purpose weapons which can accommodate either conventional or atomic shells. The Defense Department [Page 362] is not at this time seeking to have atomic warheads introduced.
The objections of the State Department are political and legal. It takes the position that these weapons are identified in the minds of the people of the world as atomic weapons and that their introduction—and the report thereof—(at this time) would produce serious adverse reactions against the United States throughout the world and would open the way for the Communists to accuse the UN Command and the United States of breaching the Armistice. On the legal side, the State Department lawyers take the position that the introduction of the two disputed items could not be regarded as legally justifiable under Article 13 d unless it could be demonstrated that the Communists had done the same thing on their side of the line. In response to a specific request, the Joint Chiefs of Staff in a memorandum of October 19, 1956 stated “There is no evidence to substantiate the reports of the existence of atomic warheads or atomic ground delivery systems in North Korea. However, since the signing of the Armistice, the Communists have introduced modern arms and equipment into North Korea. Communist aircraft having atomic delivery capability and additional atomic delivery systems could be deployed to North Korea on short notice.”5 The Defense Department General Counsel considers that the introduction of the two disputed items could be legally justified at this time. Under all the circumstances, paragraph 13 d must be given a practical interpretation. In view of the fact that we will have to live with the Armistice for the indefinite future, it would be self-defeating to insist on an interpretation which required a 1953 model weapon to be replaced in 1956 or even in 1966 with a weapon no longer in current production.
It is important to note that both the Legal Adviser of the State Department and the General Counsel of the Defense Department are in complete agreement that this problem is not one to be determined on the legal issues. Instead, they both consider that the decision to be made is a political and military one. They have recommended that the problem be resolved on this basis at the highest level.
The Joint Chiefs of Staff, as well as this office, view with the utmost concern the fact that a considerable period of time has now passed without any practical steps having been taken toward modernization of the forces in Korea. The situation of the Far East commander is becoming increasingly disadvantageous and in time will become intolerable. Under the circumstances, we believe it is imperative that modern weapons be introduced even though they have an atomic capability. In this respect, the 280mm gun and the Honest [Page 363] John are not different from the Century series aircraft which are already approved by the Department of State in the undisputed portion of the list. We further believe the legal justification for the introduction of the whole list is sound and the possibility that the Communists will charge a breach should not deter the United States from moving because such a charge is probable if we modernize at all regardless of whether the Honest John and the 280mm gun are on the list.
Recommendations:
Accordingly, it is recommended that—
- A.
- The Secretary of Defense approve the introduction of all the weapons on the attached list on the ground that such action is legally permissible as a matter of interpretation under paragraph 13 d.
- B.
- The Secretary of Defense recommend to the President that the Department of Defense position be adopted as Government policy and that the introduction of all the modern weapons on the list be authorized for the modernization of United States forces in Korea.
Concurrences:
The General Counsel for the Department of Defense.