discussion will often focus on whether the suffering occasioned by the use of the weapon is needless, superfluous, or
grossly disproportionate to the advantage gained by its use.
Weapons may be illegal:
Per se. Those weapons calculated to cause unnecessary suffering, determined by the "usage of states."
Examples: lances with barbed heads, irregularly shaped bullets, projectiles filled with glass. (FM 27-10, para. 34.)
By improper use. Using an otherwise legal weapon in a manner to cause unnecessary suffering. Example: a
conventional air strike against a military objective where civilians are nearby vs. use of a more precise targeting method
that is equally available - if choice is made with intent to cause unnecessary suffering. (The LOW does not mandate the
use of guided munitions.)
By agreement or prohibited by specific treaties. Example: certain land mines, booby traps, and laser weapons
are prohibited under the Protocols to the 1980 Conventional Weapons Treaty.
Small Arms Projectiles. Must not be exploding or expanding projectiles. The Declaration of St. Petersburg
of 1868 prohibits exploding rounds of less than 400 grams (14 ounces). Expanding rounds were prohibited by an 1899
Hague Declaration (of which U.S. was never a party). U.S. practice, however, accedes to this prohibition as being
customary international law. State practice is to use full metal-jacketed small arms ammunition (which reduces bullet
expansion on impact).
Hollow point ammunition. Typically, this is semi-jacketed ammunition that is designed to expand
dramatically upon impact. This ammunition is prohibited for use in armed conflict by customary international law and
the treaties mentioned above. There are situations, however, outside of international armed conflict, where use of this
ammunition is lawful because its use will significantly reduce collateral damage to noncombatants and protected property
(hostage rescue, aircraft security). "Matchking" ammunition - has a hollow tip--but is not expansive on impact. Tip is
designed to enhance accuracy only and does not cause unnecessary suffering.
High Velocity Small Caliber Arms. Early controversy about M-16 causing unnecessary suffering due to
movement of the high velocity round upon impact. Tests concluded the rounds did not cause unnecessary suffering.
Sniper rifles, .50 caliber machine guns, and shotguns. Much "mythology" exists about the lawfulness of
these weapon systems. Bottom line: they are lawful weapons, although rules of engagement (policy and tactics) may
limit their use.
Fragmentation. (FM 27-10, para 34.) Legal unless used in an illegal manner (on a protected target or in a
manner calculated to cause unnecessary suffering). Unlawful if fragments are undetectable by X-ray (Protocol I, 1980
Conventional Weapons Treaty).
Land Mines and Booby Traps. Lawful if properly used, however, international process underway to outlaw all
antipersonnel land mines.
Indiscriminate. Primary legal concern: indiscriminate use that endangers civilian population. Articles 4 and
5, Protocol II of the 1980 Conventional Weapons Treaty, restrict placement of mines and booby traps in areas of "civilian
concentration."
Remotely delivered mines (those planted by air, artillery, etc.): Only used against military objectives; and
then only if their location can be accurately recorded and if they are self-neutralizing or self-destructing.
Non-remotely delivered mines, booby traps, and other devices: May not be used in towns or cities or other
places where concentrations of civilians are present unless: they are placed in the vicinity of a military objective under
the control of an adverse party; or measures are in place to protect civilians from their effects (posting of signs etc.).
Chapter 2
9
Law of War
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