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:
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
23 September 1985
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
, and may be employed in peacetime or wartime missions of the Army.
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
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
. (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
in 1983, a new
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.
- 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
, 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
18 October 1907
, 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
August 12, 1949
prohibits the use in international armed conflict:
29 July 1899
". . . 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."
is not a party to this treaty, but
officials over the years have taken the position that the armed forces of the
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.
- 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.
- 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.
- 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
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.
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
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.
, Colonel, USMC,
Chief of the JAG's International Law Branch