Foreign Relations of the United States, 1969–1976, Volume E–14, Part 2, Documents on Arms Control and Nonproliferation, 1973–1976

96. Memorandum From the President’s Assistant for National Security Affairs (Kissinger) to President Ford¹

Washington, October 29, 1974.

SUBJECT

• Geneva Protocol

The 1925 Geneva Protocol in effect prohibits the first use in war of chemical and biological weapons. In August 1970, President Nixon asked the Senate to consent to U.S. ratification of the Protocol with the understanding that it does not prohibit first use in war of tear gas and herbicides.

The Senate Foreign Relations Committee (SFRC) strongly supports the Protocol but disagrees with our position on these two agents. There appears to be little prospect of favorable Senate action without some change in our stance.²

In 1971, the SFRC asked us to reconsider our position on these two agents, and President Nixon directed an interagency review of our position and possible alternatives. The options and agency views expressed below resulted from that review.

The basic question is whether the military benefits in retaining the option to initiate use of tear gas and herbicides in war outweigh the political costs of our not becoming a party to the Protocol.

The advantage of preserving the option to initiate use of these agents in war is that it would allow us to use them in any future military conflicts, as deemed militarily useful to accomplish missions or save lives.

Tear gas is a useful weapon in many military situations against an enemy with little protective equipment (masks) and retaliatory capability. Its use in Vietnam saved U.S. and allied lives. Herbicides can be a useful support to military operations provided that special circumstances exist. In Vietnam, they were used widely and proved useful in selected instances. These agents also have important military limitations. Tear gas effectiveness is significantly decreased if an enemy has effective masks and may provide no relative advantage if he has a comparable retaliatory capability (e.g., the USSR and other major powers). Herbicides can be used widely only where there are negligible threats to the aircraft, and herbicides take from hours to months to take effect (thereby allowing the enemy time to react).

The disadvantages of preserving the first use option for these agents are that this would probably result in failure to obtain Senate consent to ratify the Protocol, and this would (1) result in some adverse international and domestic criticism (only 4 of the 98 parties to the Protocol have sided with us on this issue while 52 have expressly disagreed); (2) leave the U.S. the only militarily important country not a party to the Protocol; and (3) dissipate the favorable impact here and abroad of President Nixon’s 1969 initiatives in the field of chemical and biological weapons control.

Also, failure to resolve the Protocol issue with the SFRC could continue to impede Senate consideration of the Biological Weapons (BW) Convention, which was sent to the Senate in August 1972 and which expressly reaffirms the Protocol’s significance and objectives. Only ratification by the U.S., UK and USSR is now needed to bring the BW Convention into force. The USSR and the UK have been ready to ratify for some time but have been waiting for action by the U.S. so that the three depositaries ratify at the same time.

OSD and the JCS strongly recommend preserving the option to initiate use of tear gas and herbicides in war because of military advantages which could accrue in some types of conflict situations.

ACDA and State strongly recommend that we should be willing to forego this option in war, except for riot control purposes and base perimeter clearing, since this could (1) lead to some resolution of the international disagreement over warfare use of these agents; (2) significantly improve chances of obtaining the Senate’s consent to ratify the Protocol; and (3) be accomplished in a manner that does not concede that our past interpretation and practices have been contrary to the Protocol.

State and ACDA differ only on the tactical question of how we should express a willingness to forego the first use option for these agents.

State recommends that we agree to accept a prohibition on first use of these agents against parties to the Protocol which confirm a reciprocal obligation and that we accept this as a universal obligation if and when a substantial majority of the parties confirms a reciprocal obligation. This could facilitate resolution of our obligations on a one-for-one basis with some of the key parties and perhaps lead to a general resolution of the issue among the parties; but this could result in a multitiered system of U.S. obligations under the Protocol.

ACDA prefers that we consider the Protocol as prohibiting first use of these agents from the date of U.S. ratification. This would best ensure Senate consent to ratification; gain wide domestic and international acceptance as an affirmative step; and clarify from the outset our own legal obligations. But this could be considered as implying an admission of past error in policy and practice and upset those senators and parties to the Protocol (particularly the UK and Japan) who have supported our position.

ACDA also considers that we could renounce first use in war of these agents as a matter of national policy but not as a matter covered by the Protocol. OSD would prefer either this course or proposing a new treaty to ban first use if you decide to forego the first use option.

The advantages of renouncing first use as a matter of policy are that this would (1) not require any U.S. reinterpretation of the Protocol; (2) be most unlikely to be construed as any admission that our practices have been contrary to the Protocol; and (3) be the easiest to implement as it requires none of the diplomatic and/or legal procedures involved in the other alternatives. But this may be criticized as more easily reversible than a formal legal obligation under the Protocol.

My View. The military utility of tear gas and, though to a much lesser degree, herbicides is established in some types of conflict situations. But there are important limitations on their usefulness.

Ratification of the Protocol is an important part of earlier administration initiatives in chemical and biological weapons restraints and would ease the way for ratification of the BW Convention. We are the only militarily significant country in the world not a party to the Protocol, which the U.S. initiated back in 1925, and U.S. ratification of the BW Convention will lead to its coming into force.

Only four countries have sided with our contention that tear gas and herbicides are not covered by the Protocol. To remain unyielding entirely would tend to dissipate the political plus resulting from our earlier initiatives. If we attempt to preserve all military prerogatives for these agents in war, we would get nowhere nearer favorable Senate action on these initiatives. However, I believe that we should attempt to preserve the option to use these agents in war in defensive situations to save lives, and be willing to relinquish their use only as offensive weapons of war to facilitate or increase enemy casualties.

I therefore recommend that we (1) renounce first use of herbicides except for base perimeter clearing; (2) renounce first use of tear gas as an offensive weapon of war; and (3) preserve the right to use tear gas (a) in riot control circumstances (including rioting prisoners of war), (b) in avoiding or reducing civilian casualties, (c) in rescue missions, and (d) in defensive warfare situations for the purpose of saving lives. We would renounce these uses as a matter of national policy and not as an international legal obligation under the Protocol.

I recognize that there may be some opposition within the Senate Foreign Relations Committee to our proposal to preserve the right to initiate use in defensive warfare situations, and would consult with key Senate leaders before taking this step to resolve the impasse on ratification of the Protocol.

The draft NSDM at Tab A reflects this recommendation.

Recommendation:

That you approve the NSDM at Tab A.

1. Summary: Kissinger called President Ford’s attention to agency views on the 1925 Geneva Protocol prohibiting the first use of chemical and biological weapons in war. In addition, Kissinger recommended that Ford approve a draft National Security Decision Memorandum that would limit or possibly renounce the use of herbicides in this context.

   Source: Ford Library, National Security Council, Institutional Files—NSDMs, Box 56, NSDM 279—Geneva Protocol of 1925 and Riot Control Agents and Chemical Herbicides (1). Secret. Sent for action. A stamped notation on the first page of the memorandum indicates that Ford saw it. Ford initialed his approval of the draft. NSDM 279, as approved, is Document 97. For the 1971 SFRC request, see Foreign Relations, 1969–1976, volume E–2, Documents on Arms Control and Nonproliferation, 1969–1972, Document 232. For the undated Report on the Geneva Protocol of 1925, prepared by the Interdepartmental Political-Military Group, see ibid., Document 236.

2. After extensive hearings on the Protocol and related issues, the House Foreign Affairs Committee recently reported that the Senate should simply consent to U.S. ratification of the Protocol without the Administration’s exceptions for tear gas and herbicides. [Footnote is in the original.]