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The Hague Declaration concerning expanding bullets was adopted on 29 July 1899 largely in response to a rifle bullet used by British troops in wars on the north-west frontier of the Indian Empire (today Pakistan’s North-West Frontier Province on the border with Afghanistan). The so-called ‘dumdum’ bullet, named after the small town near Calcutta where the ammunition factory was located that produced the bullet in the 1890s, expanded on impact, causing disabling wounds and allegedly providing the ‘stopping power’ that British troops felt was necessary to halt advancing ‘brave and fanatical tribes’.A. Ogston, 'The Wounds Produced by Modern Small-Bore Bullets', British Medical Journal, 17 September 1898, 813-4.
Controversy quickly arose about whether the wounding effect of this (and similar) expanding bullets fell foul of the principle laid down in the Saint Petersburg Declaration of 1868, namely, whether the use of such bullets would ‘uselessly aggravate the sufferings of disabled men, or render their death inevitably’, and would, hence, be ‘contrary to the laws of humanity’. The British authorities argued that the dumdum bullet (as well as the Woolwich bullet, a ‘hollow-point’ bullet developed at the ordnance factory at Woolwich, England, in the late 1890s) was not an exploding bullet prohibited by the 1868 Saint Petersburg Declaration, and that its use, especially against ‘semicivilised or barbarous races who practice no humanity in their warfare’ was not contrary to the spirit of any convention or custom of war.A. Ogston, 'Continental Criticism of English Rifle Bullets', British Medical Journal, 25 March 1899, 752. They also contended that wounds inflicted by this bullet were no more severe than wounds caused by the type of rifle bullets used by all Powers before the recent introduction of small bore rifles.M. Waldren, Dum-Dum Bullets, Police Firearms Officers Association (PFOA), Police History Series, 16, citing 'The British Declaration on the Dumdum Bullet’.
In August 1898, against the background of an arms race among great Powers, whose costs were increasingly difficult to bear and which threatened peace in Europe, the Russian Tsar proposed a conference for the maintenance of peace and the limitation of armaments. In a circular dated 30 December 1898, sent on behalf of the Tsar, the Russian Foreign Minister, Count Mouravieff, proposed that the conference should, among other things, ‘prohibit the use in the armies and fleets of any new kind of firearms whatever, and of new explosives, or any powders more powerful than those now in use, either for rifles or cannons’.'Russian Circular Note Proposing the First Peace Conference', in J. B. Scott (ed.), The Hague Conventions and Declarations of 1899 and 1907, Oxford University Press, 1915, xiv-xvii.
Although the programme of the conference was cast in general terms, the discussions in the sub-commission dealing with new kinds of firearms focused on the British dumdum bullet.W. I. Hull, The Two Hague Conferences and their Contributions to International Law, International School of Peace, Ginn & Company, Boston, 1908, 181. Although all the Powers participating in the conference recognized that the use of bullets which cause unnecessarily severe wounds should be prohibited, the delegates of the United States of America (USA) and the British representatives argued that it had not been proved that the dumdum bullet caused the effects that the delegates were aiming to prevent. The US delegate, therefore, filed a proposal for a more general prohibition on ‘The use of bullets which inflict wounds of useless cruelty, such as explosive bullets and in general every kind of bullet which exceeds the limit necessary for placing a man immediately hors de combat’. This proposal was never put to the vote due to procedural issues.'Report of Captain Crozier to the Commission of the United States of America to the International Conference at The Hague regarding the Work of the First Committee of the Conference and its Sub-Committee', in J. B. Scott (ed.), The Hague Conventions and Declarations of 1899 and 1907, Oxford University Press, 1915, 34–5.
Certain ‘expanding’ bullets in use in Portugal and Switzerland received little attention at the Conference, which strengthened the view of some British commentators that ‘humanity had nothing whatever to do’ with the introduction of the ban.A. Ogston, 'The Peace Conference and the Dum-Dum Bullet', British Medical Journal, 29 July 1899, 278. They saw the process as anti-British agitation, taking place against the backdrop of the ‘Scramble for Africa’, in which continental European Powers feared their troops may find themselves opposing British troops equipped with expanding bullets, and the rivalry between the Russian and the British empires over supremacy in Central Asia (the ‘Great Game’).Note that the encounter of British and French troops in Fashoda in 1898 had brought the two Powers to the verge of war.
Great Britain, Portugal, and the USA did not sign the Declaration in 1899. Britain and Portugal adhered to it in 1907.
The Contracting Parties to the 1899 Hague Declaration concerning expanding bullets agreed to
abstain from 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.
Thus, the Declaration prohibited the use of certain bullets on the basis of terminal ballistic effects (‘expand or flatten easily in the human body’) which were, at the time, believed to cause especially severe wounds. The Declaration describes the characteristics of bullets that were believed to have such effects, namely, 'bullets with a hard envelope which does not entirely cover the core or is pierced with incisions’.
The prohibition was introduced mostly with a view to ban the British dumdum bullet, which met the technical characteristics, but the expression ‘such as’ indicates that other bullets could also expand or flatten easily in the human body, and would, hence, also be prohibited by the Declaration. What bullets other than the dumdum bullet would fall within the ambit of the Declaration was, however, disputed at the time, and remains the subject of controversy.
The Declaration is still formally binding on some states, but the customary rule to which it gave rise is of greater practical importance today. According to the International Committee of the Red Cross (ICRC), state practice establishes as a norm of customary international law 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.
Some scholars have expressed doubt as to the customary law status of the prohibition on expanding bullets, particularly in relation to 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.
At the time of adoption, the 1899 Declaration concerning expanding bullets was understood by many as an application of the rule against means or methods of a nature to cause superfluous injury or unnecessary suffering enshrined in the 1868 Saint Petersburg Declaration.For a different view, see W. H. Parks, 'Conventional Weapons and Weapons Reviews', 8(2005) Yearbook of International Humanitarian Law, 69: ‘It [the Hague Declaration] did not conclude that such bullets caused superfluous injury or unnecessary suffering, as the Declaration’s prohibition applied only in wars between States Parties and ceased to apply if one State Party was allied with a non-State Party.’ Today, this rule is a norm of customary international humanitarian law applicable in international and non-international armed conflict, codified in Article 35(2) of 1977 Additional Protocol I, and binding on all states.ICRC, Customary IHL Study, 2005, Rule 70. According to the ICRC, there is general agreement that expanding bullets would cause unnecessary suffering. The ICRC acknowledges, however, that some ambiguity persists regarding the practice of the USA, which admits the possibility that bullets captured by the definition of the Hague Declaration could be legal if they did not cause unnecessary suffering, i.e. if the suffering can be justified by military necessity.ICRC, Customary IHL Study, 2005, Rule 77; See, e.g. 'Sniper Use of Open-Tip Ammunition', Memorandum for Commander, United States Army Special Operations Command, 12 October 1990.
As was common in 19th century inter-state agreements seeking to limit harm inflicted on one’s enemies, the 1899 Hague Declaration was binding only on states parties in case of war among themselves. Participation in such a war by a state not party to the Declaration absolved all the engaged states parties from respecting the Declaration’s provisions. Also, rules of the kind agreed in the Declaration were considered to apply only among ‘civilized nations’. The Declaration did, thus, not prevent states parties from using prohibited projectiles against those excluded from that circle – colonized peoples, ‘barbarians’, or ‘savages’.For a discussion of the exclusionary strand of early international humanitarian law, see, e.g., F. Megret, ‘From “Savages” to “Unlawful Combatants”: A Postcolonial Look at International Humanitarian Law’s “Other”’, in A. Orford (ed.), International Law and its ‘Others’, Cambridge University Press, Cambridge, 2006. Available at SSRN. The British government had justified its use of expanding bullets against ‘savage tribes’ and ‘barbarian races’ in distant countries with reference to the alleged fanaticism and lack of humanity of those foes. Soon after the 1899 Hague Peace Conference, the Second Boer War broke out, opposing British troops and Dutch settlers (Boers) in South Africa, which confronted the British with a dilemma: Neither the Boers nor the British empire had subscribed to the 1899 Hague Declaration, but the Boers could not easily be categorised as ‘savages’. Expanding bullets were on issue to British troops in South Africa, but they were withdrawn early on. Alterations to fully-jacketed bullets (uncovering the core at the tip of the bullet) were carried out by soldiers on both sides, but never on a wide scale.M. Waldren, Dum-Dum Bullets, Police Firearms Officers Association (PFOA), Police History Series, 18-19.
Last updated on: 08 August 2017