272. Memorandum From Michael Guhin of the National Security Council Staff to the
President’s Assistant for National Security Affairs (Kissinger)1
2
Washington, September 7, 1972
SUBJECT:
- Tear Gas-Herbicides and the Geneva Protocol
Per your request, the memorandum from you to the President at Tab 1
expresses your recommendation that we should not be willing to
relinquish the option to initiate use of tear gas and herbicides in war
and that the Senate’s advice and consent to ratification of the Geneva
Protocol should be sought only on that basis.
The memorandum also notes that we would so notify the Foreign Relations
Committee of the President’s decision after the election. (Since this
option is expected to lead to continued deadlock between the Committee
and the Administration, there is no advantage in pushing it now.)
As stated in my previous memorandum, the major implication of this
position is that there will probably be no favorable Senate action on
the Protocol and the US (the country
which initiated and signed the Protocol in 1925) will remain the only
important country not a party to it (there are 98 parties to the
Protocol). Our failure to become a party could be used for political or
propaganda purposes against us.
In addition, the Foreign Relations Committee may hold up action on the
Biological Weapons Convention pending a resolution to its liking of the
Protocol issue. (The Convention expressly recognizes the significance of
the Protocol, reaffirms its objectives, and does not repeat its ban
against use since many nations thought this would detract from the
Protocol.) At some future time, Senate forces might muster enough votes
against our position for a sense-of-the-Senate resolution to embarrass
the Administration-but there is little likelihood that the Protocol
would be brought to a vote until there were some agreement between the
White House and the Foreign Relations Committee.
I still strongly believe that (1) ratification of the Protocol is a basic
part of the President’s initiatives in this area, (2) we should become a
party to it, and (3), to this end, we should be willing to relinquish
the first-use option on a reciprocal basis by agreeing to consider first
use of tear gas and herbicides in war prohibited by the Protocol if and when a substantial
[Page 2]
majority (e.g., three-quarters) of the
parties officially confirm a reciprocal obligation. This would keep our
present position on these two agents clearly intact for several months
at the very least and not require any change unless a required majority
officially agreed to a no-first-use policy.
There is no guarantee that the Foreign Relations Committee would agree to
this formula; but there appears no chance of their accepting our present
position.
Dick Kennedy concurs.
Recommendation:
If you still believe that we should stand firm in preserving the
first-use option for tear gas and herbicides in war, that you forward
the memorandum for the President at Tab 1.
Approve ________ (Have signed attached memorandum)
Alternatively, if you believe we should agree to relinquish the first-use
option if a substantial majority of the parties officially confirm a
reciprocal obligation, I will promptly prepare an appropriate memorandum
for the President.
Approve ________
[Page 3]
Tab 1
Memorandum From the President’s Assistant for National
Security Affairs (Kissinger) to President Nixon
Washington, undated
SUBJECT:
- Tear Gas-Herbicides and the Geneva Protocol
In August 1970, you submitted the Protocol to prohibit the use of
chemical and biological weapons to the Senate for its consent to
ratification with the understanding that it does not prohibit first
use of tear gas and herbicides in war.
The Foreign Relations Committee favors the Protocol but disagrees
with our position on these two agents. In April 1971, Chairman
Fulbright asked you to reconsider this position (letter at marked
tab). There appears no prospect of favorable Senate action without
some change in our stance.
We have now forwarded the Biological Weapons Convention to the Senate
for its consent to ratification, and this may result in further
questions regarding our position on the Protocol. (The Convention
expressly recognizes the significance and reaffirms the objectives
of the Protocol.)
There are two aspects of the problem.
Militarily, do we wish to retain the first use option? Politically,
how important is US ratification of
the Protocol internationally and domestically? My summary of the
completed interagency studies and agency positions on these
questions is at marked tab.
Military Utility. Tear gas and herbicides
have been militarily useful in Vietnam and have saved US and allied
lives. Herbicides have been used to enhance aerial observation in
forest areas and to clear vegetation along lines of communication
and around bases. Tear gas is useful in many types of operations
against an enemy with little protection (masks) or retaliatory
capability. Tear gas is also a useful tool if the adversary is
intermixed with civilians. The utility of these agents can be
expected in analogous conflict situations with lesser powers.
The main military limitations on these agents are: Wide use of
herbicides (except for base perimeters) requires aerial delivery,
control of the air, minimal enemy anti-aircraft defenses and
sufficient lack of enemy mobility. Tear gas effectiveness is
significantly decreased if the enemy has adequate masks or a
comparable retaliatory capability (e.g., all major powers).
[Page 4]
Political Factors. Failure to ratify the
Protocol would deflate international and domestic expectations and
could be used for political or propaganda purposes against us. We
are the only important country not a party (there are 98 parties) to
the Protocol. In addition, fifty-two parties (e.g., France, Spain,
Pakistan, USSR and its allies)
expressly disagree with our view on these agents. Japan, Australia,
and Portugal side with us, and the UK
sides with us on one type of tear gas (the type used in Vietnam).
About thirty parties (e.g., other West Europeans) have not set forth
positions.
Alternatives. Four alternatives are worth
consideration. None would prohibit our right of retaliation in kind
or the use in war of tear gas for riot control purposes and of
herbicides in and around our bases (the extent of US operations in
Vietnam today).
- 1.
- Preserve the First Use Option. This
would allow us to use these agents in any future conflicts and
in Vietnam, at the probable cost of no Senate consent to
ratification of the Protocol and some international and domestic
adverse criticism. Defense and the JCS strongly recommend
this choice on grounds that use of these agents has saved lives
and lessened casualties (military and civilian); tear gas has
proved unique in special circumstances where other weapons
proved ineffective; and herbicides have been vital for clearing
vegetation along lines of communication.
- 2.
- Agree to a No First Use Policy toward
States which Confirm a Reciprocal Commitment. This
would give us the lead; significantly improve chances of getting
Senate consent to ratify the Protocol; avoid any implication of
previous error; and legally permit continued use in Vietnam
unless Hanoi became a party, confirmed a reciprocal obligation
and admitted its forces are in the South. On the other hand, this choice would preclude using
these agents first against states which agree not to use them;
make it difficult to justify initiating use against others; and,
although most unlikely, Hanoi could take the above steps to stop
US use. State and Dr. David recommend this choice.
- 3.
- Agree to a No First Use Policy If and
When a Substantial Majority of the Parties (e.g.
Three-Quarters) Confirms a Reciprocal Obligation. This
would have essentially the same advantages as the preceding
choice but would also avoid our having differing obligations
toward different parties, and keep our present position clearly
intact and permit continued use in Vietnam unless and until a
substantial majority of the parties disagreed with us (which
would take several months at the very least) and Hanoi became a
party. On the other hand, if the above
conditions were met, this would preclude our initiating use
against parties to the Protocol and, if Hanoi became a party, US
forces in Vietnam would lose the use of tear gas (except for
riot control purposes) were we still in military operations.
Although not included in the
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interagency review, this choice would be
as acceptable to State, Dr. David and ACDA
as the preceding alternative.
- 4.
- Consider First Use to be Prohibited by
the Protocol. This would best ensure Senate consent to
ratification, and bring us into line with most of the parties to
the Protocol. On the other hand, it
would imply past improper conduct; could cause some difficulties
for those allies and perhaps Senators who have sided with us;
and would make it very difficult to justify continued use in or
supply to Vietnam (except for the base herbicide operations).
ACDA recommends this choice. ACDA takes State’s view as a
fallback position.
My Views. Tear gas and herbicides have
proved useful in saving lives and lessening casualties in Vietnam in
a variety of situations. Although their utility would be
significantly decreased in conflicts with major or well-equipped
powers, the military utility of these agents could be expected in
conflicts similar to that in Vietnam. Moreover, I do not believe we
should in any way risk our option to continue using tear gas in
Vietnam even if that risk seems very small or several months
away.
Therefore, I believe that we should preserve the first-use option by
sticking to our position that the Protocol should be interpreted as
not prohibiting first-use of these agents in war and, after
November, we should so inform the Foreign Relations Committee. This
would put the ball back in the Senate court. It is most unlikely
that the Senate will act favorably on the Protocol with our
interpretation and, therefore, the matter will probably remain
deadlocked for the foreseeable future.
If you approve the recommendation, I will issue the appropriate
instructions to State after
November.
Recommendation:
That you approve our remaining firm on the position that we will not
relinquish the option to initiate use of tear gas and herbicides in
war and that Senate consent to our ratification of the Protocol
should be sought on that basis only.
APPROVE DISAPPROVE
