Proportionality • DOD Report • By placing a heavy burden on attackers, the modern LOW creates a perverse incentive for defenders to violate distinction and wage “lawfare” • Jus in Bello Proportionality Today • Different than human rights and jus ad bellum proportionality • Three perspectives: 1) Target, 2) Means/Method, 3) Conduct (timing, warning etc.) • Requires commander to balance “force protection” concerns with collateral damage concerns • Standard: would a reasonable commander in the commander’s circumstances view the incidental effects as excessive compared to the concrete and direct military advantage (requires “complete good faith”) • Different application in COIN? “A slightly ambiguous protective provision is preferable to none at all” ~ Solis
Unnecessary Suffering Agenda • The Concept of Unnecessary Suffering • Application: • Expanding Bullets • Shotguns • XM 107 Long Range Sniper Rifle • 40 mm Thermobaric Rounds • LRAD • Robots and Drones
History • 1139 – Crossbows outlawed as “Un-Christian” • 1863 – Lieber code – No suffering for the sake of suffering • 1899 – “Dum-Dum” bullets
Unnecessary Suffering Prohibition • “it is especially forbidden – (e.) To employ arms, projectiles, or material calculated to cause unnecessary suffering;” ~ 1907 Hague IV, Art 23 (e) “Propres a causer des mauxsuperflus” • “of a nature to cause” vs. • “calculated to cause”
Unnecessary Suffering AP I Restatement • “It is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause • superfluous injury or • unnecessary suffering.” ~ AP 1, Art 35 (2) Note: Since 1974, we do this to implement Hague 23(e), even though we haven’t ratified AP-I
Unnecessary Suffering And Military Necessity • The principle of unnecessary suffering, the obverse of military necessity, is intended to restrain the suffering inflicted on opposing combatants, rather than civilians. “Warfare…justifies subjecting an enemy to massive and decisive force, and the suffering that it brings. Military necessity justifies the infliction of suffering upon an enemy combatant…[H]owever…military necessity only justifies the infliction of as much suffering as is necessary to bring about the submission of an enemy.
Unnecessary Suffering Weapons • “In the study, development, acquisition or adoption of a new weapon…a High Contracting Party is under an obligation to determine whether its employment would…be prohibited by this Protocol…” ~ AP 1, Art 36 Effects are weighed against other lawful weapons.
Ottawa • Applies ONLY to anti-personnel mines. • Effort led by NGO’s • Would require elimination of all anti-personnel mines. • US is a persistent objector (we have trended towards a no use of “persistent” landmines policy)
CPW V – Explosive Remnants of War • US is a signatory
What is prohibited is the design or modification and employment of a weapon for the purpose of causing suffering beyond that required by military necessity. In conducting the balancing test necessary to determine a weapon’s legality, the effects of a weapon cannot be weighed in isolation. They must be examined against comparable weapons in use on the modern battlefield and the military necessity for the weapon under consideration.
Unnecessary Suffering SIRUS Project • The ICRC project SIrUS seeks to objectively quantify the unnecessary suffering or superfluous injury principle. It proposes a novel medical approach to determine the lawfulness of a weapon based solely upon that weapon’s health-effects on the human body.
Unnecessary Suffering SIRUS Project (1) disease, other than that resulting from physical trauma from explosions or projectiles; or (2) abnormal physiological state, specific abnormal psychological state other than the expected response to trauma from explosions or projectiles); or, (3) permanent disability specific to the kind of weapon (with the exception of the effects of point-detonated antipersonnel mines); or, (4) disfigurement specific to the kind of weapon; or, (5) inevitable or virtually inevitable death in the field (more than 22%) or hospital mortality level more than 5%; or, (6) grade 3 wounds (as measured by the Red Cross wound classification) (among those who survive to hospital less than 10% had grade 3 wounds); or, (7) effects for which there is no well-recognized and proven medical treatment which can be applied in a well-equipped field hospital
Weapons Review • DoDD 5000.01 - The Defense Acquisition System (“[t]he acquisition and procurement of DoD weapons and weapon systems shall be consistent with all applicable domestic law and treaties and international agreements…customary international law, and the law of armed conflict (also known as the laws and customs of war.))” • As a result, any proposed “weapon” has to be “reviewed by the service [Judge Advocate General] or DoD General Council for legality under the Law of War.
Weapons Review • DoDD 3000.3 - requires “a legal review of the acquisition of all non-lethal weapons.” This should be done to “ensure consistency with the obligations assumed by the U.S. Government under all applicable treaties, with customary international law, and, in particular, the laws of war.”
Law of War Handbook • The legal review conducted will “often focus on whether the employment of the weapon or munition for its normal or expected use inevitably would cause injury or suffering manifestly disproportionate to its military effectiveness.”
Weapons: Legal Review • LEGAL REVIEW: DEPSECDEF Memo, 30 Oct 2002; AR 27-53; AFI 51-402; SECNAVINST 5711.8A • The test: Is the acquisition and • procurement of the weapon consistent with all applicable treaties, customary international law, and the law of armed • conflict?
Bullets: Design • The actual bullet • Casing/shell/cartridge • Powder • Rim • Primer
1899 Hague (IV,3) Expanding Bullets • Aimed at the dum-dum bullet • “bullets which expand or flatten easily in the human body, such as bullets with hard envelope which does not entirely cover the core or is pierced with incisions”
The Human Target: Incapacitation • Physiological Factors: brain & spinal cord, blood loss (>25%) • Psychological Factors: +/-, awareness of injury; fear of injury, death, blood, or pain; intimidation (weapon or act); preconceived notions; or the simple desire to quit; drugs. • Physical Factors: insignificant. “Knock-down” myth (baseball).
The Human Target • The only way to consistently and immediately incapacitate a human with a gunshot wound is through the disruption or destruction of the brain or upper spinal cord. • Otherwise, incapacitation is subject to a random host of variables, the most important of which are beyond the control of the shooter.
Bullets: Wounding Mechanisms • Penetration. The tissue through which the projectile passes and disrupts or destroys in passing. • Permanent Cavity. This is the volume of space once occupied by tissue that has been destroyed by the passage of the projectile. It is a function of penetration and the frontal area of the projectile. Quite simply, it is the hole left by the passage of the bullet. • Temporary Cavity. This is the expansion of the permanent cavity by stretching due to the transfer of kinetic energy during the projectile‘s passage. • Fragmentation. Projectile pieces or secondary fragments of bone which are impelled outward from the permanent cavity and may sever muscle tissues, blood vessels, etc., apart from the permanent cavity. Fragmentation is not necessarily present in every projectile wound. It may or may not occur and should be considered a secondary effect.
The “Hijacking” of HP Bullets & Why it is Time to Relook the Ban • 1899 Hague Declaration (IV, 3) Concerning Expanding Bullets was a politically motivated action by Britain’s European rivals and was based on a wholly inaccurate German experiment and sensational press coverage. • In current operating environment of urban combat, hollow point bullets may help reduce collateral damage: more lethal, less “pass-through”, fewer shots.
Application: Thermobaric Rounds http://www.youtube.com/watch?v=Ttl9FDxtnm8&feature=related
Don’t Call it a Weapon - Them’s Fightin’ Words The Long Range Acoustic Device (LRAD)
1998 – Preliminary Legal Review of Acoustic Energy NLW Systems • Conducted by the DoN, OJAG, International & Operational Law Division at the request of the JNLWP. • Did not “describe any specific weapon or weapon system.” Rather, the review acknowledged that additional legal reviews would be required at a later date when a specific acoustic device, like the LRAD, was identified. • Examined acoustic technologies in the realm of the LoW and reviewed whether suffering caused by an acoustic device would be needless, superfluous, or “disproportionate to the military advantage reasonably expected” from use; whether it could be used in a discriminate manner in order to minimize risk to civilians not taking a direct part in hostilities; and finally, “whether there is a specific rule of law or treaty provision prohibiting the weapon’s acquisition or use.” • The review concluded, “there are no legal barriers to the development”
1998 – Preliminary Legal Review of Acoustic Energy NLW Systems (cont.) • Examined suffering vs. military utility/necessity • The necessity was “potential use as a NLW, and the military benefits” that would result • “The more effective the technologies from a military standpoint, the more difficult it becomes to state that any suffering caused by the use of a weapon “clearly outweighs” its military utility.”
1998 – Preliminary Legal Review of Acoustic Energy NLW Systems (cont.) • Looked at current practice and history of comparable “wounding mechanisms.” • Focused on potential for permanent hearing loss (permanent injury ≠ unnecessary suffering) • Not an uncommon disability on the battlefield • In addition, chances are remote (based on ongoing testing and research) • Passes the “unnecessary suffering” test
2007 – Full-Spectrum Effects Platform/Sherriff; Final Legal Review • Conducted by the DoA, OTJAG • The LRAD, “when used in the manner proscribed, will not cause permanent damage to the ear or hearing loss.” • Acknowledge that the LRAD had the capability of being “employed with the intent to cause discomfort to the listener.” This type of use would convert the LRAD from being only a “communication” device, to becoming a non-lethal weapon. • The LRAD, to date, has merely been used as a “hail and warning device,” and therefore, not been considered a non-lethal weapon. Should the LRAD be employed with the intent to cause discomfort to the listener, it would be considered a non-lethal weapon, but because the discomfort is well short of permanent damage to the ear, it does not violate the legal threshold of ‘superfluous injury or unnecessary suffering.’”