It has become known that the American command in Saigon told the Pentagon last spring that tear gas had rarely been used to save civilian lives. Furthermore, it said it doubted that tear gas could be used in Vietnam for that purpose.

Those assessments conflict with both a statement the Pentagon issued last week and earlier explanations by the State Department and the United States Arms Control and Disarmament Agency.

The United States Army has purchased 13.7 million pounds of tear gas for use in Southeast Asia since 1964. The use of tear gas in South Vietnam was first defended in 1965 when it became known that the United States was using the gas on the ground that it helped save civilian lives and was a "humanitarian" weapon.

Critics have charged that its use may violate an international treaty that the United States has endorsed banning gas warfare and may open the way in future wars to wider use of gases.

Last week the Pentagon said: "Riot-control agents are particularly useful in reducing civilian casualties when the enemy has infiltrated into population centers or built-up areas, or is believed to be holding civilian hostages. In short, riotcontrol agents are used when they will help save lives."

Last year the Pentagon asked the American command in Saigon for an evaluation of the use of tear gas. The field commanders reported privately that the greatest amount of CS-a sort of extra-strength tear gas that induces choking as well as tears-had been used against enemy camps, bunkers and caves. They added that the gas had rarely been used to save civilian lives or property.

The Army evaluators said further that the possibility of using gas to reduce civilian casualties was probably slim because civilians generally stayed away from fighting areas.

The private report said that civilian lives might be saved if tear gas were dropped in certain operations instead of bombs or artillery shells.

But even that method would not be certain, the report continued, because tear gas might drive civilians into the open and thus make them more vulnerable.

In 1965 and 1966, the United States said its use of tear gas in Vietnam was justified on the ground that it would save the lives of civilians as well as combatants and that its use would be analogous to riot control.

William C. Foster, then director of the United States arms-control agency, asked a United Nations committee in 1966:

"In Vietnam, when the Vietcong take refuge in a village and use innocent civilians and prisoners as shields, would it be more humane to use rifle and machine-gun fire and explosive grenades to dislodge and destroy the Vietcong and in so doing risk the lives of the innocent and wounded hostages?"

A year earlier, Secretary of State Dean Rusk told reporters: "We do not expect that gas will be used in ordinary military operations. Police-type weapons were used in riot control in South Vietnam and in situations analagous to riot control, where the Viet-cong, for example, were using civilians as screens for their own operations."

Last week's statement by the Pentagon clearly indicated that American policy had shifted and that tear gas was routinely used in combat.

"There is a continuing effort to use conventional combat tactics and weapons in Vietnam which will hold U.S. and Vietnamese military and civilian casualties to a minimum," it said. "This effort can and does include the use of tear gas." Some critics of the American use of tear gas in combat assert that the Geneva Protocol of 1925 increase tear gas under its prohibition of the first use of "asphyxiating, poisonous or other gases."

The United States has helped write the protocol, signed it, and endorsed it at the United Nations in 1966, but it was never formally ratified by the United States Senate. The endorsement specifically excluded tear gas and herbicides. Herbicides are being used in Vietnam, the Army has said, to destroy crops thought to be meant for enemy consumption and to clear areas for tactical use.

REASONING FOR USE OF TEAR GAS IN WARFARE

is The CHAIRMAN. You point out that the domestic use of tear gas a reason for allowing its use in warfare and also that CS-2 is not used here.

Does the fact that in Vietnam tear gas is often delivered by artillery shells and bombs affect this reasoning?

Secretary ROGERS. No; I did not want to leave the impression, I do not believe I said that the only reason we were giving this interpretation to the protocol was because it was used domestically.

The reason that we use it in Vietnam is because we think it is more humane than napalm or other methods of warfare.

For example, in cleaning out tunnels and caves in areas that are covered with foliage and so forth, we think it is more humane, it causes the enemy to leave those places and then they are available for capture. If we use napalm or other weapons, it would kill the enemy.

U.S. USE OF TEAR GAS AS ROUTINE WAR WEAPON

The CHAIRMAN. I have another article by Mr. Blumenthal I will put in the record on this subject, entitled "United States Now Uses Tear Gas as Routine War Weapon." (The information referred to follows:)

[The New York Times, Dec. 6, 1969]

U.S. Now USES TEAR GAS AS ROUTINE WAR WEAPON

(By Ralph Blumenthal)

Saigon, South Vietnam, Dec. 5.-Several years after the first American use of tear gas here provoked widespread condemnation, the gas is being used routinely by United States and South Vietnamese troops to flush out suspected enemy troops.

The practice, which has been no secret here, was confirmed today in interviews with United States military spokesmen. Critics in the United States of the war have complained of the practice and have insisted that it should have been included in President Nixon's recent ban on the offensive use of chemical weapons and on all development or use of bacteriological weapons. The White House made it clear that Mr. Nixon exempted the use of the tear gas.

Current official confirmation of the use of tear gas marks a departure from a shifting policy of denying that gas was being used.

United States authorities here said there were no new limitation on the use of tear gas following the President's pledge on Nov. 25 to desist from chemical and germ warfare.

The two types of gas used, according to military spokesmen, are CN, a tear gas that produces intense burning of the eyes and face but is not lethal, and CS, a stronger irritant that may induce nausea in concentrated quantities but also is not lethal.

A third type-DM, or Adamsite, which can be deadly in extreme concentrations-reportedly has been prepared for use here on occasion but a spokesman said he had no knowledge of its past or current use.

Apparently anticipating renewed inquiries about the use of gas in Vietnam. American authorities on Sept. 23 drew up a statement to be read to inquirers. It said:

"There is a continuing effort to use the most effective tactics and weapons in every combat situation in Vietnam to hold U.S. and Republic of Vietnam armed forces casualties to the absolute minimum.

ONLY A SPLIT SECOND

"This effort can include the use of riot-control agents, either tear gas or C.S. These agents have been used in the Republic of Vietnam to drive enemy personnel from caves, tunnels and fortified positions. It has also been used on occasions when the enemy has infiltrated into population centers, built up areas, and is suspected of holding innocent civilian hostages.

"Enemy troops who are driven from their bunkers or fortified positions and who do not surrender and who continue to fight are engaged as any dangerous armed enemy would be. Since the effects of the riot-control agents last only a few minutes it is not uncommon for the enemy to resume shooting at our soldiers.

"In short, the riot-control agents are employed when they will help save the lives of noncombatants and soldiers of the free-world military forces. The use of riot-control agents also permits rendering the enemy ineffective and subject to capture without taking his life when the situation permits."

In theory, according to the statement, enemy troops who are flushed out are to be given a chance to surrender. Often, in practice, according to men who have witnessed field operations, American soldiers have only a split second to determine whether the people flushed out are surrendering or fighting so the Americans may shoot rather than take chances.

One officer at the United States military headquarters, here said: "Sometimes it happens but that's not the way it's supposed to be done. Normally we try to capture them. Maybe they could lead us to others or to caches."

The tear gas, a headquarters spokesman said, is usually introduced into the suspected enemy retreats by gas hand grenades. They are available to all units at the lowest level and do not require special authorization for use, he said. The tear gas is also spread by helicopters, the spokesman said. The purpose of such widespread gas dispersion, according to those who have witnessed it, is to force suspected enemy troops out of protected areas and into clearings where they are vulnerable to air strikes or allied ground attacks.

After one such tear-gas saturation of a jungle area 265 miles northeast of Saigon on Feb. 21, 1966, Washington officials were quoted as explaining that the tactics were "designed to flush Vietcong troops out of bunkers and tunnels before the attack by B-52 bombers."

PLACED UNDER INVESTIGATION

On Sept. 7, 1965, Lieut. Col. L. N. Utter, commander of a Marine Corps battalion in South Vietnam, was placed under official investigation on suspicion of unauthorized use of 48 canisters of CN gas to clear caves and tunnels of suspected enemy troops.

CHARGES WERE DROPPED

The charges were dropped three weeks later amid some speculation that the whole affair was an officially planned ruse to test public reaction to the use of tear gas in Vietnam. Among those who later analyzed the episode and held this view was Seymour M. Hersh, the correspondent of Dispatch News Service, in Washington, who recently was instrumental in developing the story of the alleged massacre at Songmy.

In March 1965, Pentagon and State Department officials held news conferences to rebut published newspaper accounts from Vietnam that United States troops were "experimenting" with gas warfare. Dean Rusk, then Secretary of State, said it had been directed that "these weapons be used only in those situations analogous to riot control."

By 1966, Mr. Hersh has reported, the policy appeared to have changed with planes and soldiers using tear gas in quantity to flush out the enemy.

The gas CN, developed during World War I, has the chemical name of chloroacetrophenone. CS, known chemically as o-chlorobenzalmalononitrile, and reportedly developed by the Bristish in the nineteen-fifties, is employed here in the forms of CS-1, a more persistent gas, and CS-2.

The gas DM or adamsite, known chemically as diphenylaminochloroarsine, was developed by the Germans in World War II. It contains arsenic, causes acute sneezing and coughing and, in high concentrations, can lead to death.

United States military authorities say enemy troops have occasionally fired mortar shells filled with a CS-type gas at American troops. They have also thrown back captured United States gas grenades.

American soldiers are equipped with gas masks in Vietnam. Some North Vietnamese soldiers carry Chinese-made gas masks while the Vietcong sometimes carry improvised-and often ineffective-plastic masks.

American spokesmen said they were unable to say how much tear gas the United States has used. A correspondent in Washington reported in September that the United States purchased almost six million pounds of tear gas for use in South Vietnam in the fiscal year ended last June 30.

The United States has also used defoliants in the Vietnam war to destroy the vegetation that affords sanctuary to the enemy.

The defoliants come in three types and are said to cause no permanent damage to shrubbery or injury to humans. The United States is reported to have turned

over more than 100 million pounds of the chemicals to the South Vietnamese for defoliation so far.

The Geneva protocol of 1925 which the United States has never ratified but says it supports, prohibits the first use in war of "asphyxiating, poisonous or other gases and bacteriological methods of warfare."

The United States has maintained that tear gases or riot control agents are not covered by the prohibition.

USE OF TEAR GAS IN CONJUNCTION WITH HIGH EXPLOSIVES

The CHAIRMAN. The point arises, does not the use of tear gas in conjunction with high explosives amount to a lethal use of a nonlethal gas?

Secretary ROGERS. Well, the fact is, if you did not use tear gas you would be using two lethal weapons, using napalm and something else. In addition, this saves American lives. It is not only more humane as far as the enemy is concerned, but it saves American lives. If you protect the fire base with CS-2, it makes it difficult for the enemy to go through it. So not only, we think, is it more humane as far as the enemy is concerned, but it does save American lives.

VIEWS OF OTHER PARTIES CONCERNING PROTOCOL COVERAGE

The CHAIRMAN. Has any party to the protocol other than Japan, Australia, and Portugal made known an informal understanding similar to our own?

Secretary ROGERS. No; except the vote in the General Assembly that I referred to shows that there is a good deal of doubt about the application of the words that I mentioned earlier.

In other words, this has been an obscure part of the Protocol since 1925. Japan, as I pointed out in my statement, followed the same procedure that we are suggesting here.

Australia has, and I think there are many other nations that have the same doubt, although they have not expressed it the same way. A lot of them were parties a long while ago so they have not had any occasion to express their views on it except the vote in the United Nations would suggest that there is doubt about it.

I was going to say the United Kingdom does not consider CS within the coverage of the Protocol.

REASONS FOR ABSTENTIONS IN 1969 GENERAL ASSEMBLY VOTE

The CHAIRMAN. With reference to the 36 abstentions in the 1969 General Assembly vote, do you know how many of these nations abstained because of their position on tear gas and herbicides, and how many abstentions resulted from the belief that the General Assembly was not the proper forum for resolving treaty interpretations? Secretary ROGERS. No: we do not. Mr. Chairman.

I would presume that there were many that abstained because of the procedural question, but we think also that some abstained for the other reason. We are just not sure. Many did not state their reasons on the abstention.

The CHAIRMAN. They did not?

Secretary ROGERS. Not to my knowledge; no.

INSTRUCTIONS TO U.S. EMBASSIES BEFORE GENERAL ASSEMBLY VOTE

The CHAIRMAN. Is it true, as I have seen reported, that before the vote the State Department instructed our embassies to stress to their host government the U.S. view that the General Assembly was not the proper place to interpret treaties?

Secretary ROGERS. I think that is correct. That is certainly our view. I think it is quite clear that the General Assembly is not a place to interpret international agreements.

The CHAIRMAN. Would it not be proper for the hearing record to contain the instructions of our Government?

Secretary ROGERS. We would be perfectly happy to do that. The CHAIRMAN. You will make that available for the record. Secretary ROGERS. I do not believe it says anything more than I have just said. We do not think the General Assembly is the proper forum to give legal opinions about treaties or international agreements.

The CHAIRMAN. I am not trying to argue with you about the validity of that. I am trying to see if this was the reason why other countries abstained.

(The information referred to follows:)

INSTRUCTIONS TO U.S. EMBASSIES PRIOR TO DECEMBER 1969 GENERAL ASSEMBLY VOTE, STATEMENT BY DEPARTMENT OF STATE

Prior to the December, 1969, vote in the General Assembly on Resolution 2603A, the Department of State instructed the United States embassies in a number of countries to take up the matter with their host governments. The instruction contained the following statement of United Sates views on the resolution, which was to be left, at the embassy's discretion, as a memorandum of the U.S. position : "The operative paragraph of the Draft Resolution (A/C.1/L. 489) states: "Declares as contrary to generally recognized rules of international law as embodied in the Geneva Protocol the use in international armed conflicts of:

66

'any chemical agents of warfare: chemical substances, whether gaseous, liquid, or solid, which might be employed because of their direct toxic effects on man, animals or plants, and

""any biological agents of warfare: living organisms, whatever their nature, or infective material derived from them, which are intended to cause disease or death in man, animals or plants, and which depend for their effects on their ability to multiply in the person, animal or plant attacked.'

"This paragraph is not a correct statment of the rules on use of CBW as embodied in the Protocol. It fails to account for the reservations of many parties, including major powers. These reservations generally provide that the Protocol is binding only as regards other parties. Many reservations also provide that the Protocol will cease to bind the reserving party when an ally of an enemy state fails to observe the Protocol, even though a state other than the reserving party is attacked. These reservations in effect have made the Protocol a no-first-use, rather than a non-use, agreement. The Draft Resolution ignores this fact.

"The use of chemical substances having 'direct toxic effects on . . . plants' would be declared prohibited by the Resolution. This is lawmaking, for the Protocol does not prohibit the use of chemical herbicides. The July, 1924, Report of the Subcommittee of the League of Nations temporary mixed commission, which studied the effects of CBW and the negotiating history of the Protocol, supports the view that chemical anti-plant agents were not intended to be covered by he Protocol. As late as March, 1933, the General Commission of the Geneva Disarmament Conference, in discussing a new draft treaty more extensive than the Protocol, only prohibited the use of chemical anti-plant agents harmful to man or animals.

"Finally, the Resolution would declare as contrary to the Protocol the use of riot control agents (RCA's). In fact, for 40 years states have recognized, but not resolved, the ambiguity of the Protocol on this subject. The negotiating histories of several agreements from which the language of the Protocol is derived supports the view that RCA's were not covered by Protocol.