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Army JAG bans Effective legal sniper round

Posted By Blackfive • [January 21, 2006]

Via Seamus, this interesting and horrifying story of Army legal interference where it wasn't needed from the Washington Times - Bill Gertz and Rowan Scarborough's Inside the Ring:

Sniper rounds
    An Army judge advocate general (JAG) temporarily banned Army and Marine Corps snipers from using a highly accurate open-tip bullet.
The JAG, we are told, mistakenly thought the open-tip round was the same as hollow-point ammunition, which is banned. The original open-tip was known as Sierra MatchKing and broke all records for accuracy in the past 30 years.
    The difference between the open-tip and the hollow point is that the open tip is a design feature that improves accuracy while the hollow point is designed for increasing damage when it hits a target.
    About 10 days ago, the Army JAG in Iraq ordered all snipers to stop using the open-tip 175-grain M118LR bullet, claiming, falsely, it was prohibited. Instead of the open-tip, snipers were forced to take M-60 machine gun rounds out of belts and use them instead.
    The order upset quite a few people here and in Iraq who said the JAG ignored the basic principle of every military lawyer that there is a presumption of legality for all issued weapons or ammunition that are made at the military service level at the time they are acquired.
    "She forced snipers to use less accurate ammunition, thereby placing U.S. forces and Iraqi civilians at greater risk," a Pentagon official said of the JAG, who was not identified by name. "And she incorrectly issued an order. JAGs may advise a commander, but they cannot issue orders."
    After Army lawyers were finally alerted to the JAG's action, the order was lifted and the JAG was notified that the open tip was perfectly legal for use by snipers. However, the reversal was followed by the Army officials' taking retaliation against a sniper who blew the whistle on the bogus order. The sniper lost his job over a security infraction in reporting the JAG.

A friend of mine who used to blog about his role as a leader in Iraq closed one of his best posts with "The damn lawyers are going to cost us the war."  That was in relation to the ridiculous rules of engagement that his team was under...

If anyone knows anything about this case, especially who the whistle-blower sniper is, please email me.

The legal ruling decades ago on the sniper round:

MEMORANDUM FOR COMMANDER, UNITED STATES ARMY SPECIAL OPERATIONS COMMAND

SUBJECT: Sniper Use of Open-Tip Ammunition

DATE:

23 September 1985

  1. Summary.

    This   memorandum considers whether United States Army Snipers may employ   match-grade, "open-tip" ammunition in combat or other special missions. It   concludes that such ammunition does not violate the law of war obligations of   the

    United   States

    , and may be employed in peacetime or   wartime missions of the Army.  
  2. Background.

    Sierra   MatchKing 168-grain match grade boat tail For more than a decade two bullets   have been available for use by the United States Army Marksmanship Unit in   match competition in its 7.62mm rifles. The M118 is a 173-grain match grade   full metal jacket boat tail, ogival spitzer tip bullet, while the M852 is the   Sierra MatchKing 168-grain match grade boat tail, ogival spitzer tip bullet   with an open tip. Although the accuracy of the M118 has been reasonably good,   though at times erratic, independent bullet comparisons by the Army, Marine   Corps, and National Guard marksmanship training units have established   unequivocally the superior accuracy of the M852. Army tests noted a 36%   improvement in accuracy with the M852 at 300 meters, and a 32% improvement at   600 yds; Marine Corps figures were twenty-eight percent accuracy improvement   at 300 m, and 20% at 600yds. The National Guard determined that the M852   provided better bullet groups at 200 and 600 yards under all conditions than   did the M118. [FNa1]

    The 168-grain   MatchKing was designed in the late 1950's for 300 m. shooting in international   rifle matches. In its competitive debut, it was used by the 1st place winner   at the 1959 Pan American Games. In the same caliber but in its various bullet   lengths, the MatchKing has set a number of international records. To a range   of 600 m., the superiority of the accuracy of the M852 cannot be matched, and   led to the decision by  

    U.S.

    military   marksmanship training units to use the M852 in competition.

    A 1980   opinion of this office concluded that use of the M852 in match competition   would not violate law of war obligations of the  

    United States

    .   (citation omitted) Further tests and actual competition over the past decade   have confirmed the superiority of the M852 over the M118 and other match grade   bullets. For example, at the national matches held at  

    Camp Perry

    ,  

    OH

    in 1983, a new  

    Wimbledon

    record of 2--015 X's was set using the   168-gr. MatchKing. This level of performance lead to the question of whether   the M852 could be used by military snipers in peacetime or wartime missions of   the Army.

    During the period in which this review was conducted, the   180-gr. MatchKing (for which there is no military designation) also was tested   with a view to increased accuracy over the M852 at very long ranges. Because   two bullet weights were under consideration, the term "MatchKing" will be used   hereinafter to refer to the generic design rather than to a bullet of a   particular weight. The fundamental question to be addressed by this review is   whether an open-tip bullet of MatchKing design may be used in combat.    
  3. Legal   Factors.

    The principal provision relating to   the legality of weapons is contained in Art. 23e of the Annex to Hague   Convention IV Respecting the Laws and Customs of War on Land of

    18 October 1907

    , which prohibits   the employment of "arms, projectiles, or material of a nature to cause   superfluous injury." In some law of war treatises, the term "unnecessary   suffering" is used rather than "superfluous injury." The terms are regarded as   synonymous. To emphasize this, Art. 35, para. 2 of the 1977 Protocol I   Additional to the Geneva Conventions of

    August 12, 1949

    , states in part that "It is prohibited to   employ weapons [and] projectiles . . . of a nature to cause superfluous injury   or unnecessary suffering." Although the U.S. has made the formal decision that   for military, political, and humanitarian reasons it will not become a party   to Protocol I, U.S. officials have taken the position that the language of   Art. 35(2) of Protocol I as quoted is a codification of customary   international law, and therefore binding upon all nations. The terms   "unnecessary suffering" and "superfluous injury" have not been formally   defined within international law. In determining whether a weapon or   projectile causes unnecessary suffering, a balancing test is applied between   the force dictated by military necessity to achieve a legitimate objective   vis-à-vis suffering that may be considered superfluous to achievement of that   intended objective. The test is not easily applied. For this reason, the   degree of "superfluous" injury must be clearly disproportionate to the   intended objectives for development and employment of the weapon, that is, it   must outweigh substantially the military necessity for the weapon system or   projectile. The fact that a weapon causes suffering does not lead to the   conclusion that the weapon causes unnecessary suffering, or is illegal per se.   Military necessity dictates that weapons of war lead to death, injury, and   destruction; the act of combatants killing or wounding enemy combatants in   combat is a legitimate act under the law of war. In this regard, there is an   incongruity in the law of war in that while it is legally permissible to kill   an enemy combatant, incapacitation must not result inevitably in unnecessary   suffering. What is prohibited is the design (or modification) and employment   of a weapon for the purpose of increasing or 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 viewed in   isolation. They must be examined against comparable weapons in use on the   modern battlefield, and the military necessity for the weapon or projectile   under consideration. In addition to the basic prohibition on unnecessary   suffering contained in Art. 23e of the 1907 Hague IV, one other treaty is   germane to this review. The Hague Declaration Concerning Expanding Bullets of  

    29 July 1899

    prohibits the   use in international armed conflict:

". . . of bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions."

The

U.S.

is not a party to this treaty, but

U.S.

officials over the years have taken the position that the armed forces of the

U.S.

will adhere to its terms to the extent that its application is consistent with the object and purpose of Art. 23e of the Annex to the Hague Convention IV, quoted above.

It is within the context of these two treaties that questions regarding the legality of the employment of the MatchKing "open tip" bullet must be considered.

  1. Bullet   Description.

    As previously described, the   MatchKing is a boat tail, ogival spitzer tip bullet with open tip. The "open   tip" is a shallow aperture (approximately the diameter of the wire in a   standard size straight pin or paper clip) in the nose of the bullet. While   sometimes described as a "hollow point," this is a mischaracterization in law   of war terms. Generally a "hollow point" bullet is thought of in terms of its   ability to expand on impact with soft tissue. Physical examination of the   MatchKing "open tip" bullet reveals that its opening is extremely small in   comparison to the aperture in comparable hollow point hunting bullets; for   example, the 165-grain GameKing is a true hollow point boat tail bullet with   an aperture substantially greater than the MatchKing, and skiving (serrations   cut into the jacket) to insure expansion. In the MatchKing, the open tip is   closed as much as possible to provide better aerodynamics, and contains no   skiving. The lead core of the MatchKing bullet is entirely covered by the   bullet jacket. While the GameKing bullet is designed to bring the ballistic   advantages of a match bullet to long range hunting, the manufacturer expressly   recommends against the use of the MatchKing for hunting game of any size   because it does not have the expansion characteristics of a hunting   bullet.

    The purpose of the small, shallow aperture in the MatchKing is   to provide a bullet design offering maximum accuracy at very long ranges,   rolling the jacket of the bullet around its core from base to tip; standard   military bullets and other match bullets roll the jacket around its core from   tip to base, leaving an exposed lead core at its base. Design purpose of the   MatchKing was not to produce a bullet that would expand or flatten easily on   impact with the human body, or otherwise cause wounds greater than those   caused by standard military small arms ammunition.  
  2. MatchKing   performance.

    Other than its superior long   range marksmanship capabilities, the MatchKing was examined with regard to its   performance on impact with the human body or in artificial material that   approximates human soft tissue. It was determined that the bullet will break   up or fragment in some cases at some point following entry into soft tissue.   Whether fragmentation occurs will depend upon a myriad of variables, to   include range to the target, velocity at the time of impact, degree of yaw of   the bullet at the point of impact, or the distance traveled point-first within   the body before yaw is induced. The MatchKing has not been designed to yaw   intentionally or to break up on impact. These characteristics are common to   all military rifle bullets. There was little discernible difference in bullet   fragmentation between the MatchKing and other military small arms bullets,   with some military ball ammunition of foreign manufacture tending to fragment   sooner in human tissue or to a greater degree, resulting in wounds that would   be more severe than those caused by the MatchKing. [FNaaa1]

    Because of   concern over the potential mischaracterization of the M852 as a "hollow point"   bullet that might violate the purpose and intent of the 1899 Hague Declaration   Concerning Expanding Bullets, some M852 MatchKing bullets were modified to   close the aperture. The "closed tip" MatchKing did not measure up to the   accuracy of the "open tip" MatchKing.

    Other match grade bullets were   tested. While some could approach the accuracy standards of the MatchKing in   some lots, quality control was uneven, leading to erratic results. No other   match grade bullet consistently could meet the accuracy of the open-tip   bullet.  
  3. Law of War   Application.

    From both a legal and medical   standpoint, the lethality or incapacitation effects of a particular   small-caliber projectile must be measured against comparable projectiles in   service. In the military small arms field, "small caliber" generally includes   all rifle projectiles up to and including .60 caliber (15mm). For the purposes   of this review, however, comparison will be limited to small-caliber   ammunition in the range of 5.45mm to 7.62mm, that is, that currently in use in   assault or sniper rifles by the military services of most   nations.

    Wound ballistic research over the past fifteen years has   determined that the prohibition contained in the 1899 Hague Declaration is of   minimal to no value, inasmuch as virtually all jacketed military bullets   employed since 1899 with pointed ogival spitzer tip shape have a tendency to   fragment on impact with soft tissue, harder organs, bone or the clothing   and/or equipment worn by the individual soldier.

    The pointed ogival   spitzer tip, shared by all modern military bullets, reflects the balancing by   nations of the criteria of military necessity and unnecessary suffering: its   streamlined shape decreases air drag, allowing the bullet to retain velocity   better for improved long-range performance; a modern military 7.62mm bullet   will lose only about one-third of its muzzle velocity over 500 yards, while   the same weight bullet with a round-nose shape will lose more than one-half of   its velocity over the same distance. Yet the pointed ogival spitzer tip shape   also leads to greater bullet breakup, and potentially greater injury to the   soldier by such a bullet vis-à-vis a round-nose full-metal   jacketed bullet. (See Dr. M. L. Fackler, "Wounding Patterns for Military Rifle   Bullets," International Defense Review, January 1989, pp. 56-64, at   63.)

    Weighing the increased performance of the pointed ogival spitzer   tip bullet against the increased injury its breakup may bring, the nations of   the world-- through almost a century of practice--have concluded that the need   for the former outweighs concern for the latter, and does not result in   unnecessary suffering as prohibited by the 1899 Hague Declaration Concerning   Expanding Bullets or article 23e of the 1907 Hague Convention IV. The 1899   Hague Declaration Concerning Expanding Bullets remains valid for _expression of   the principle that a nation may not employ a bullet that expands easily on   impact for the purpose of unnecessarily aggravating the wound inflicted upon   an enemy soldier. Such a bullet also would be prohibited by article 23e of the   1907 Hague IV, however. Another concept fundamental to the law of war is the   principle of discrimination, that is, utilization of means or methods that   distinguish to the extent possible legitimate targets, such as enemy soldiers,   from noncombatants, whether enemy wounded and sick, medical personnel, or   innocent civilians. The highly trained military sniper with his special rifle   and match grade ammunition epitomizes the principle of discrimination. In   combat, most targets are covered or obscured, move unpredictably, and as a   consequence are exposed to hostile fire for limited periods of time. When   coupled with the level of marksmanship training provided the average soldier   and the stress of combat, a soldier's aiming errors are large and hit   probability is correspondingly low. While the M16A2 rifle currently used by   the United States Army and Marine Corps is capable of acceptable accuracy out   to six hundred meters, the probability of an average soldier hitting an enemy   soldier at three hundred meters is ten percent.

    Statistics from past   wars suggest that this probability figure may be optimistic. In Would War II,   the

    United   States

    and its allies expended 25,000 rounds   of ammunition to kill a single enemy soldier. In the Korean War, the   ammunition expenditure had increased four-fold to 100,000 rounds per soldier;   in the Vietnam War, that figure had doubled to 200,000 rounds of ammunition   for the death of a single enemy soldier. The risk to noncombatants is   apparent.

    In contrast, United States Army and Marine Corps snipers in   the Vietnam War expended 1.3 rounds of ammunition for each claimed and   verified kill, at an average range of six hundred yards, or almost twice the   three hundred meters cited above for combat engagements by the average   soldier. Some verified kills were at ranges in excess of 1000 yards. This   represents discrimination and military efficiency of the highest order, as   well as minimization of risk to noncombatants. Utilization of a bullet that   increases accuracy, such as the MatchKing, would further diminish the risk to   noncombatants.  
  4. Conclusion.

    The   purpose of the 7.62mm "open-tip" MatchKing bullet is to provide maximum   accuracy at very long range. Like most 5.56mm and 7.62mm military ball   bullets, it may fragment upon striking its target, although the probability of   its fragmentation is not as great as some military ball bullets currently in   use by some nations. Bullet fragmentation is not a design characteristic,   however, nor a purpose for use of the MatchKing by United State Army snipers.   Wounds caused by MatchKing ammunition are similar to those caused by a fully   jacketed military ball bullet, which is legal under the law of war, when   compared at the same ranges and under the same conditions. The military   necessity for its use-- its ability to offer maximum accuracy at very long   ranges--is complemented by the high degree of discriminate fire it offers in   the hands of a trained sniper. It not only meets, but exceeds, the law of war   obligations of the

    United   States

    for use in combat.

This opinion has been coordinated with the Department of State, Army General Counsel, and the Offices of the Judge Advocates General of the Navy and Air Force, who concur with its contents and conclusions.

An opinion that reaches the same conclusion has been issued simultaneously for the Navy and Marine Corps by The Judge Advocate General of the Navy.

Authored by W.

Hays

 

Parks

, Colonel, USMC,
Chief of the JAG's International Law Branch


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