Expanding bullets

According to the Declaration, the

use 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 prohibited pursuant to the 1899 Hague Declaration concerning Expanding Bullets.

The Declaration applied to the use of expanding bullets ‘in time of war between civilized nations’ (equivalent to international armed conflict) and was adopted mostly with a view to ban the British dumdum bullet (see 'Types'), a 19th-century rifle bullet considered by many to cause unnecessarily injurious wounds. Although the Hague Declaration is still formally binding on some states, its practical relevance today lies in the rule of customary international law it sets forth.

According to the International Committee of the Red Cross (ICRC), state practice establishes as a norm of customary international humanitarian law (IHL) applicable in both international and non-international armed conflicts that

the use of bullets which expand or flatten easily in the human body is prohibited.ICRC, Customary IHL Study, 2005, Rule 77.

The ICRC found that state practice is in conformity with this prohibition, and that no state has asserted that it would be lawful to use such ammunition.ICRC, Customary IHL Study, 2005, Rule 77. Certain scholars have, however, expressed doubt as to the customary law status of the prohibition on expanding bullets, particularly in non-international armed conflicts.See W. H. Parks, 'Conventional Weapons and Weapons Reviews', 8(2005) Yearbook of International Humanitarian Law, 89, citing Turns and Greenwood in footnote 136.

The prohibition on expanding bullets is often understood as a concrete application of the rule enshrined in the 1868 Saint Petersburg Declaration against arms that ‘uselessly aggravate the sufferings of disabled men, or render their death inevitable’. According to this rule of customary IHL applicable in non-international and international armed conflicts (the so-called SIrUS rule), it is prohibited to use means and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering.ICRC,Customary IHL Study, 2005, Rule 70. The connection is evident, for example in the 1913 Oxford Manual of the Laws of Naval War. Pursuant to Art. 16

it is forbidden …To employ arms, projectiles, or materials calculated to cause unnecessary suffering. Entering especially into this category are … bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not cover the core entirely or is pierced with incisions.

According to the ICRC, there is general agreement that expanding bullets would cause unnecessary suffering.ICRC, Customary IHL Study, 2005, Rule 77. The ICRC acknowledges, however, that some ambiguity persists regarding the practice of the United States of America (USA), which asserts that bullets captured by the definition of the 1899 Hague Declaration could be legal if they did not cause unnecessary suffering, i.e. if the suffering could be justified by military necessity.ICRC, 2005 Customary IHL Study, Rule 77. Although the USA has never formally adhered to the 1899 Hague Declaration, ‘it has acknowledged and respected its applicability in conventional combat operations in the wars in which United States forces have participated’. ('Use of Expanding Ammunition by U.S. Military Forces in Counterterrorist Incidents (DAJA-IA 1985/7026, 23 September 1985)', The Army Lawyer, International Law Note, DA PAM 27-50-155, November 1985) The USA is party to 1907 Hague Convention IV and bound by Article 23(e) of the annexed Regulations, which prohibits the employment of ‘arms, projectiles, or material calculated to cause unnecessary suffering’. Pursuant to Article 35(2) of 1977 Additional Protocol I, ‘It is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering’. The USA accepts that the more recent formulation of this so-called 'SIrUS rule' in Article 35(2) codifies customary IHL and is therefore binding upon the USA and all other states. ('Sniper Use of Open-Tip Ammunition', Memorandum for Commander, United States Army Special Operations Command, 12 October 1990 (restricted access).) The US interpretation of the SIrUS rule nevertheless requires a purpose- or intent-element, as did the English version of Article 23(e) of the 1907 Hague Regulations. As a consequence, the USA considers that only expanding bullets designed or modified ‘for the purpose of increasing or causing suffering beyond that required by military necessity’  are prohibited under international law, including under the 1899 Hague Declaration. ('Sniper Use of Open-Tip Ammunition', Memorandum for Commander, United States Army Special Operations Command, 12 October 1990.) It has, for instance, been suggested that it would not be correct to conclude that the more severe injury to a ‘combatant or terrorist target’ in ‘urban or counterterrorist operations’ resulting from the use of an expanding bullet would necessarily be superfluous in view of the reduced risk to civilians from expanding bullets (because of a lesser risk of over-penetration and ricochet).W. H. Parks, 'Conventional Weapons and Weapons Reviews', 8(2005) Yearbook of International Humanitarian Law, 90, citing Greenwood. See also, J. F. Berry, 'Hollow Point Bullets: How History has Hijacked their Use in Combat and Why it is Time to Reexamine the 1899 Hague Declaration concerning Expanding Bullets', 206(2010) Military Law Review, 126. Ambiguity about whether the use of expanding bullets prohibited under the 1899 Hague Declaration is ipso facto a violation of the SIrUS rule also persists in relation to international criminal law relating to expanding bullets (see below).

The argument that the wounding effect on the target should be balanced against the reduced risk of injury to civilians in the vicinity of the target (assuming that expanding bullets are less likely to pass through the target or objects, to injure through ricochet, or sometimes, assuming that some expanding bullets are more accurate),J. F. Berry, 'Hollow Point Bullets: How History has Hijacked their Use in Combat and Why it is Time to Reexamine the 1899 Hague Declaration concerning Expanding Bullets', 206(2010) Military Law Review, 126. See also, W. H. Parks, 'Conventional Weapons and Weapons Reviews', 8(2005) Yearbook of International Humanitarian Law, 90, citing Greenwood. possibly informed by human rights considerations for the safety of bystanders (see below) relies on IHL rules protecting civilians against the effects of hostilities (including the rule of distinction) and challenges the protection afforded to combatants under IHL from the infliction of superfluous injury or unnecessary suffering.

International humanitarian law (IHL) only regulates the use of expanding bullets as a means of warfare, that is, their use in the conduct of hostilities in an armed conflict. Thus, the use of expanding bullets in a law enforcement operation, even during a situation of armed conflict, does not amount to a violation of the 1899 Hague Declaration or the customary IHL rule it sets forth.

Use of expanding bullets for law enforcement purposes is, however, governed by the strict requirements of international human rights law on the use of lethal force.For a brief discussion, see N. Melzer, 'Conceptual Distinction and Overlaps Between Law Enforcement and the Conduct of Hostilities', in T. D. Gill, D. Fleck (eds.), The Handbook of the International Law of Military Operations, 2010, 46. The use of expanding bullets for sports or hunting purposes is subject to national regulation.

The type of injuries associated with expanding bullets fired from military rifles raises concerns, inter alia, under the right to life of the suspected offender.See, e.g., Art. 6, International Covenant on Civil and Political  Rights. An argument can also be made that bullets, which cause unnecessarily injurious wounds violate the right not to be subjected to cruel or inhuman treatment.See, e.g., Art. 7, International Covenant on Civil and Political  Rights.

The 1990 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (BPUFF) mandate governments and law enforcement agencies to ‘adopt and implement rules and regulations on the use of force and firearms against persons by law enforcement officials’. In developing such rules and regulations, they ‘shall keep the ethical issues associated with the use of force and firearms constantly under review’.Principle 1. Pursuant to Principle 11, such rules and regulations should include guidelines that ‘prescribe the types of firearms and ammunition permitted’ and ‘prohibit the use of those firearms and ammunition that cause unwarranted injury or present an unwarranted risk’. What this implies for the legality of bullets that expand within the body is not finally settled, but, at a minimum, careful review is needed of any ammunition to ensure that it does not ‘cause unwarranted injury or present an unwarranted risk’.

It should be noted that expanding bullets commonly used by police forces for law enforcement purposes tend to be fired from handguns, such as pistols, and generally travel at a much lower velocity than bullets fired from a military rifle. They therefore deposit less energy on impact than rifle bullets and are less prone to cause the type of especially severe wounds that led to the prohibition of expanding bullets as a means of warfare. Certain legal experts have argued that if fired from a military rifle, bullets that expand in the human body, such as hollow-point or soft-nose bullets, should be banned in law-enforcement scenarios on the basis that they cause unwarranted injury.R. Geiss, 'Poison, Gas and Expanding Bullets: The Extension of the List of Prohibited Weapons at the Review Conference of the International Criminal Court in Kampala, 13(2010) Yearbook of International Humanitarian Law, 345.

At the same time, bullets that expand in the human body tend to present a lesser risk to the lives of bystanders. Because they transfer their kinetic energy quickly to the target, these bullets are less likely to pass through the target or other objects and into another person, or to injure bystanders through ricochet. The ICRC notes that several states have decided that for domestic law-enforcement purposes, outside armed conflict, in particular where it is necessary to confront an armed person in an urban environment or crowd of people, expanding bullets may be used by police to ensure that the bullets used do not pass through the body of a suspect into another person and to increase the chance that once hit, the suspect is prevented from firing back.ICRC,  Customary IHL Study, 2005, Rule 77. Some consider that the lesser energy of bullets fired from handguns, together with the reduced risk to bystanders and a better chance of rapid incapacitation, mean ‘that use of police bullets [referring to ‘expanding handgun ammunition’] with lead exposed at the tip is not incompatible with reasonable use of force’.R. Coupland, D. Loye, 'The 1899 Hague Declaration concerning Expanding Bullets: A Treaty Effective for more than 100 Years Faces Complex Contemporary Issues', 85(849)(2003) International Review of the Red Cross, 141.

Justifications for the use of expanding bullets geared toward the protection of bystanders raise difficult questions when the boundary between conduct of hostilities and law enforcement is blurred.This is perhaps increasingly the case, either because it is disputed whether an armed conflict exists at the relevant time and place, or because it is unclear whether, during an armed conflict, the use of force in question is part of a combat or a policing operation. Use of expanding bullets has been justified in counterinsurgency or counterterrorist operations that may in some instances qualify as conduct of hostilities under international law.A 1985 Opinion of the US Judge Advocate General concluded that use of expanding ammunition, including ‘dum-dum bullets, hollow-point bullets, and soft-point bullets’ by US military forces in ‘counterterrorist incidents’ or ‘counterterrorist situations’ would be legal. The Opinion is ambiguous regarding the qualification of such operations under international law. See, 'Use of Expanding Ammunition by U.S. Military Forces in Counterterrorist Incidents (DAJA-IA 1985/7026, 23 September 1985)', The Army Lawyer, International Law Note, DA PAM 27-50-155, November 1985.

‘Employing 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 listed in Article 8(2)(b)(xix) of the Rome Statute, among the ‘serious violations of the laws and customs applicable in international armed conflict’ that amount to war crimes under the jurisdiction of the International Criminal Court.Although inclusion of language concerning prohibited weapons was contentious, ‘the prohibition on expanding bullets was evidently uncontroversial’ and was seen as an extension of the customary rule prohibiting the use of weapons which inflict unnecessarily cruel wounds. (J. F. Berry, 'Hollow Point Bullets: How History has Hijacked their Use in Combat and Why it is Time to Reexamine the 1899 Hague Declaration concerning Expanding Bullets', 206(2010) Military Law Review, citing Bothe, 125–6.) The use of expanding bullets is also a war crime under the jurisdiction of the panels of judges within the District Court in Dili, East Timor, with exclusive jurisdiction over serious criminal offences (UNTAET Regulation No. 2000/15, Section 6(1)(b)(xix).

States Parties to the Kampala Review Conference of the Rome Statute, held on 31 May–11 June 2010, adopted Article 8(2)(e)(xv) of the Rome Statute, which makes the use of expanding bullets, prohibited in international armed conflict by Article (2)(b)(xix), also punishable as a war crime under the jurisdiction of the Court if committed in the context of a non-international armed conflict. The inclusion of this crime in the Court’s Statute was based on a Belgian proposal and was somewhat contentious, not least due to uncertainty regarding the compliance of certain types of modern bullets with the prohibition on expanding bullets under international law.See, ‘Report of the Working Group on other amendments’, RC/11, Annex IV, §§3–8. The Elements of Crime regarding the war crime of using expanding bullets in international and non-international armed conflict are identical, aside from the requirement that the conduct in question must be ‘associated with an international armed conflict’ in relation to Article 8(2)(b)(xix), respectively, that it must take place ‘in the context of and was associated with an armed conflict not of an international character’ in relation to Article 8(2)(e)(xv). Preambular paragraph 9 of Resolution 5 regarding ‘Amendments to article 8 of the Rome Statute’ (which includes the amendment concerning the use of expanding bullets in non-international armed conflict) expresses the Review Conference’s ‘understanding that the crime is committed only if the perpetrator employs the bullets to uselessly aggravate suffering or the wounding effect upon the target of such bullets, as reflected in customary international law’.‘Amendments to article 8 of the Rome Statute’, Resolution RC/Res.5, Adopted at the 12th plenary meeting, on 10 June 2010. See also, ‘Report of the Working Group on other amendments’, Review Conference of the Rome Statute of the International Criminal Court,  Kampala, 31 May - 11 June 2010, Official Records, RC/11, Annex IV, § 5. This formulation appears to introduce a mens rea element not specified in the Elements of Crime. The latter merely require that the perpetrator be ‘aware that the nature of the bullets was such that their employment would uselessly aggravate suffering or the wounding effect’. Commentators have pointed out that such a ‘specific intent’ requirement would be ‘incongruous with the established Elements of Crimes’ and cannot have any bearing on them.R. Geiss, 'Poison, Gas and Expanding Bullets: The Extension of the List of Prohibited Weapons at the Review Conference of the International Criminal Court in Kampala, 13(2010) Yearbook of International Humanitarian Law, 347; C. Garraway, 'Superior orders and the International Criminal Court: Justice delivered or justice denied', 836(1999) International Review of the Red Cross, raises questions about the mens rea requirement in relation to soldiers’ awareness of a bullets’ effects in the human body.)

Given the widespread use of soft-nosed and hollow-point bullets that expand in the human body for law enforcement purposes, Resolution 5 regarding ‘Amendments to article 8 of the Rome Statute’ adopted by the Review Conference, also confirms ‘the exclusion from the Court’s jurisdiction of law enforcement situations’ in relation to the war crime of using expanding bullets.

Recalling the 1899 Hague Declaration, a Resolution on Small-Calibre Weapon Systems was adopted in 1979 by the UN Conference on Prohibitions or Restrictions of Use of Certain Conventional Weapons (CCW). It called for further research on the wounding effects of small-calibre weapon systems and appealed to all governments ‘to exercise the utmost care in the development of small-calibre weapon systems, so as to avoid an unnecessary escalation of the injurious effects of such systems’.

In August 1994, at the third session of the group of governmental experts to prepare the first Review Conference of the CCW, Switzerland introduced a ‘Draft Protocol on small calibre weapon systems’ (UN doc. CCW/CONF.I/GE/16) aimed at prohibiting the use of excessively injurious small-calibre arms and ammunition. The Review Conference did not take action on the Swiss proposal, but in the Final Declaration it proposed that ‘the next Review Conference may consider the question of preparing a possible additional Protocol on small-calibre weapons’.Final Declaration, Annex C to UN Doc. CCW/CONF.I/16 (Part I). For a discussion, see E.Prokosch, 'The Swiss draft Protocol on Small-Calibre Weapon Systems', 307(1995) International Review of the Red Cross.

During the preparatory process for the Second Review Conference of the CCW held in 2001, Switzerland made a proposal for a protocol aimed at establishing, in the light of recent scientific and technological progress, standards to limit the injuries and unnecessary suffering caused by small-calibre weapons and munitions. The Conference endorsed informal efforts to examine the subject, but did not mandate a group of technical experts to look into the issue.Second Review Conference of the States Parties to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which May Be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, Geneva, 11-21 December 2001, 'Final Document', UN doc. CCW/CONF.II/2, 16 January 2002, 3; For an overview, see L. Maresca, 'Second Review Conference of the Convention on Certain Conventional Weapons', 845(2002) International Review of the Red Cross.

The UN Secretary-General’s Bulletin on the Observance by United Nations Forces of International Humanitarian Law (1999) requires that UN forces respect the rules prohibiting or restricting the use of certain weapons and methods of combat under the relevant instruments of international humanitarian law. In this connection it lists bullets which ‘expand or flatten easily in the human body’.UN Secretary-General’s Bulletin, Observance by United Nations Forces of International Humanitarian Law, UN doc. ST/SGB/1999/13 of 6 August 1999, Art. 6.2.

The Schengen acquis – Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany, and France on the gradual abolition of checks at their common borders mandates contracting parties to establish controls over the acquisition, possession, trade in, and handing over, of firearms and ammunition by natural and legal persons (not applicable to the armed forces or the police), including by establishing a class of ‘prohibited firearms and ammunition’ (Art. 78(a)). Pursuant to Art. 79(1)(e) the list of prohibited firearms and ammunition shall include ‘ammunition for pistols and revolvers with dumdum or hollow-pointed projectiles and projectiles for such ammunition’.Convention implementing the Schengen Agreement, OJ L 239, 22.9.2000, 19–62.

In September 2009, three Danish soldiers of the Danish contingent in the International Security Assistance Force in Afghanistan (ISAF) were found in possession of unauthorized 9mm ‘jacketed hollow point’ ammunition for pistols, which have an expanding effect in the body. The soldiers were sent home from Afghanistan and charged under Article 36(2) of the Danish military penal code.Annual report, Military Prosecution Service, 2009, 22 (in Danish). According to a press release by the Military Prosecution Service, they were convicted on 30 March 2010 and fined for particularly grave dereliction of duty. The Military Prosecution Service reported that the ammunition, commonly referred to as ‘dumdum ammunition’, was prohibited under the 1899 Hague Declaration because it was considered to be unnecessarily injurious. The ammunition had not been used by the soldiers.Annual report, Military Prosecution Service, 2010, 53 (in Danish).

Some national laws regulating the civilian possession and use of firearms specifically criminalise the use of expanding bullets or dumdum bullets. For example, the Code of Criminal Justice of the US state New Jersey lists 'Dum-dum or body armor penetrating bullets' among 'Prohibited Weapons and Devices'. (Title 2C:39(3)(f))