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een understood not to prohibit the use of chemical herbicides that are harmless to humanbeings. 173 Other rules, however, may apply to the use of herbicides. 1746.8.2 Asphyxiating, Poisonous, or Other Gases, and All Analogous Liquids, Materials, orDevices. It is prohibited to use in war asphyxiating, poisonous, or other gases, and all analogousliquids, materials, or devices. 175 The United States has determined that this rule is part ofcustomary international law. 176Although the rule appears quite broad, it has been understood only to apply to the use ofgases that are designed to kill or injure human beings. 177 Thus, herbicides and riot control agents172 1956 FM 27-10 (Change No. 1 1976) 37b (explaining that the prohibition against poison or poison weapons inthe Hague IV Regulations “prohibits the use in war of poison or poisoned weapons against human beings.”).173 J. Fred Buzhardt, DoD General Counsel, Letter to Chairman Fulbright, Senate Committee on Foreign Relations,Apr. 5, 1971, 10 INTERNATIONAL LEGAL MATERIALS 1300, 1302 (1971) (explaining the DoD view that it does “notregard chemical herbicides, harmless to man, as poison or poisoned weapons, for if they had been so considered,their use against crops intended solely for the consumption by the enemy’s armed forces would clearly have beenprohibited by Article 23(a) of the Hague Regulations.”).174 Refer to § 6.17 (Herbicides).175 1925 GENEVA GAS AND BACTERIOLOGICAL PROTOCOL (“Whereas the use in war of asphyxiating, poisonous orother gases, and of all analogous liquids materials or devices, has been justly condemned by the general opinion ofthe civilised world; and Whereas the prohibition of such use has been declared in Treaties to which the majority ofPowers of the world are Parties; and To the end that this prohibition shall be universally accepted as part ofInternational Law, binding alike the conscience and the practice of nations; DECLARE: That the High ContractingParties, so far as they are not already Parties to Treaties prohibiting such use, accept this prohibition, agree to extendthis prohibition to the use of bacteriological methods of warfare and agree to be bound as between themselvesaccording to the terms of this declaration.”). Consider Treaty in Relation to the Use of Submarines and NoxiousGases in Warfare, art. 5, Feb. 6, 1922, reprinted in 16 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 57, 59 (1922)(“The use in war of asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices, havingbeen justly condemned by the general opinion of the civilized world and a prohibition of such use having beendeclared in treaties to which a majority of the civilized Powers are parties, The Signatory Powers, to the end that thisprohibition shall be universally accepted as a part of international law binding alike the conscience and practice ofnations, declare their assent to such prohibition, agree to be bound thereby as between themselves and invite allother civilized nations to adhere thereto.”); Declaration to Abstain From the Use of Projectiles the Object of WhichIs the Diffusion of Asphyxiating or Deleterious Gases, Jul. 29, 1899, reprinted in 1 AJIL SUPPLEMENT: OFFICIALDOCUMENTS 157 (1907) (“The Contracting Powers agree to abstain from the use of projectiles the object of which isthe diffusion of asphyxiating or deleterious gases.”).176 Franklin D. Roosevelt, Statement Warning the Axis Against Using Poison Gas, Jun. 8, 1943 (“From time to timesince the present war began there have been reports that one or more of the Axis powers were seriouslycontemplating use of poisonous or noxious gases or other inhumane devices of warfare. … Use of such weaponshas been outlawed by the general opinion of civilized mankind.”); Myron C. Cramer, The Judge Advocate General,U.S. Army, Memorandum re: Destruction of Crops by Chemicals, 2, Mar. 1945, 10 INTERNATIONAL LEGALMATERIALS 1304, 1305 (1971) (noting that “[a]n exhaustive study of the source materials, however, warrants theconclusion that a customary rule of international law has developed by which poisonous gases and those causingunnecessary suffering are prohibited”).177 Myron C. Cramer, The Judge Advocate General, U.S. Army, Memorandum re: Destruction of Crops byChemicals, 3, Mar. 1945, 10 INTERNATIONAL LEGAL MATERIALS 1304, 1305 (1971) (“Nevertheless, the scope ofthis prohibition is restricted. It does not constitute a complete ban on all gases and chemical substances. Adistinction exists between the employment of poisonous and deleterious gases against enemy human beings, and theuse of chemical agents to destroy property, such as natural vegetation, crop cultivations, and the like. … The true345