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Unnecessary Suffering. 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

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  • 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 suffering1
Unnecessary Suffering


  • The Concept of Unnecessary Suffering
  • Application:
    • Expanding Bullets
    • Shotguns
    • XM 107 Long Range Sniper Rifle
    • 40 mm Thermobaric Rounds
    • LRAD
    • Robots and Drones
  • 1139 – Crossbows outlawed as “Un-Christian”
  • 1863 – Lieber code – No suffering for the sake of suffering
  • 1899 – “Dum-Dum” bullets
unnecessary suffering2
Unnecessary Suffering


  • “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 suffering3
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 suffering4
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 suffering5
Unnecessary Suffering


  • “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.

  • 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)

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 suffering6
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 suffering7
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
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 review1
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
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
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
Bullets: Design
  • The actual bullet
  • Casing/shell/cartridge
  • Powder
  • Rim
  • Primer
1899 hague iv 3 expanding bullets
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
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 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
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
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

Application: Thermobaric Rounds


don t call it a weapon them s fightin words

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
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
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 cont1
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
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.’”


“The machine has no feelings, it feels no fear and no hope. It operates according to the pure logic of probability. For this reason I assert that the robot perceives more accurately than man.”Max Frisch

recommendations based upon current state of the law
Recommendations(Based upon current state of the law)
  • Keep humans in the loop
  • Find someone to blame (or at least figure the robotic fallibility into the targeting equation)
  • Have military pilots/operators
  • Start thinking about this topic and its legalities (a JA issue as much as a commander’s issue)
  • Keep using robots on the battlefield
unnecessary suffering8
Unnecessary Suffering

Concluding Observations

  • The Concept of Unnecessary Suffering
    • “Inherently subjective” concept that protects combatants
    • Focus is on weapons – can’t be used in a manner “calculated to cause” unnecessary suffering
    • “The obverse of military necessity;” Std: unnecessary suffering can’t be disproportionate to military advantage
  • Applications: Expanding Bullets and LRAD
    • Expanding bullets and the problems with weapons bans
    • Importance of Weapons Review Process
    • Be careful what you call a weapon
  • Autonomous Military Robots?
    • Lots of concerns from a legal review standpoint (especially distinction/discrimination)
distinction proportionality
Distinction / Proportionality


  • Distinction / Discrimination the “grandfather principle” in the law of war
  • 21st Century Contexts strain its application
    • “The battlefield is omnipresent” ~ Chinese Colonels
    • “Haves v. Have-nots” and Assymetry ~ Schmitt
      • Bad guys can’t follow the LOW if they want to survive and the good guys don’t follow the LOW because it’s too liberal
    • ““Any use of force generates a series of reactions.” ~ COIN Manual
    • “[A]ll that matters is that, despite our best efforts, sometimes we take the very lives we are trying to protect.” ~ Adm Mullen
  • Proportionality Balancing
    • It’s the commander responsibility!
    • “Reasonable man” standard
      • Reasonable efforts (“everything feasible”) to determine expected collateral damage
      • Must also be able to articulate “concrete and direct” military advantage
    • Legal Advisors playing important role in this balancing
humanity unnecessary suffering
Humanity / Unnecessary Suffering
  • It is especially forbidden . . . To employ arms, projectiles or materials calculated to cause unnecessary suffering. FM 27-10, para. 34, Hague Convention IV, art. 23(e).
  • Intent Test
    • Note: an otherwise legal weapon can be used in an illegal manner
humanity unnecessary suffering1
Humanity / Unnecessary Suffering
  • HR art. 23(e) - Prohibition on superfluous injury and unnecessary suffering
  • AP I, art. 36: before any new weapon, means, or method of war, is employed, states are obligated to determine whether such employment is prohibited by international law

All weapons must undergo a legal review before employment