Rule 78. Exploding Bullets

Rule 78. The anti-personnel use of bullets which explode within the human body is prohibited.
State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts.
The prohibition of exploding bullets originated in 1868 with the adoption of the St. Petersburg Declaration, which was motivated by the desire to avoid inflicting suffering which exceeded that needed to render a combatant hors de combat. To this end, the Declaration specifically prohibits the use of “any projectile of a weight below 400 grammes, which is either explosive or charged with fulminating or inflammable substances”, 400 grams being the weight of the smallest artillery shell at the time.[1] Nineteen States adhered to the St. Petersburg Declaration in 1868 or 1869, i.e., most of the States in existence at that time.[2] The prohibition contained in the St. Petersburg Declaration was repeated in the Brussels Declaration, the Oxford Manual and the Oxford Manual of Naval War.[3] The Report of the Commission on Responsibility set up after the First World War identified the use of “explosive bullets” as a war crime under customary international law.[4]
Practice since the adoption of the St. Petersburg Declaration has modified this prohibition, as exploding anti-aircraft bullets were introduced in the First World War.[5] Furthermore, lighter grenades and exploding anti-materiel bullets have been introduced since. These developments have occurred without any objection. The military manuals or statements of several States consider only the anti-personnel use of such projectiles to be prohibited or only if they are designed to explode upon impact with the human body.[6] Some military manuals and legislation, nevertheless, continue to refer back to the wording of the prohibition contained in the St. Petersburg Declaration, even though practice has since modified this prohibition.[7]
Further to concerns that arose following tests which showed that certain 12.7 mm bullets exploded in human tissue simulant, the ICRC convened, in 1999, a group of military, legal and ballistic experts from four States that manufactured or stocked the 12.7 mm exploding bullet (and therefore “specially affected” States). The governmental experts, who participated in their personal capacity, agreed that the targeting of combatants with bullets the foreseeable effect of which was to explode on impact with the human body would be contrary to the object and purpose of the St. Petersburg Declaration.[8]
The prohibition of exploding bullets in any armed conflict is contained in several military manuals and in the legislation of several States.[9] It is also supported by other practice.[10] In addition, the UN Secretary-General’s Bulletin on observance by United Nations forces of international humanitarian law, which is not limited to international armed conflicts, prohibits the use of bullets which explode in the human body.[11]
Practice shows no evidence of the anti-personnel use of bullets which explode within the human body in non-international armed conflicts. In particular, States have indicated that the anti-personnel use of exploding bullets would cause unnecessary suffering.[12] The rule prohibiting means of warfare which cause unnecessary suffering is applicable in both international and non-international armed conflicts (see Rule 70).
No official contrary practice was found with respect to either international or non-international armed conflicts. No State has claimed the right to use against personnel bullets which explode within the human body. The effect of bullets which explode within the human body are much worse than that of expanding bullets, which are also prohibited (see Rule 77).
[1] St. Petersburg Declaration (cited in Vol. II, Ch. 26, § 1).
[2] Austria-Hungary, Baden, Bavaria, Belgium, Brazil, Denmark, France, Greece, Italy, Netherlands, Persia, Portugal, Prussia and the North German Confederation, Russia, Sweden and Norway, Switzerland, Turkey, United Kingdom and Würtemberg. Estonia adhered in 1991.
[3] Brussels Declaration, Article 13(e) (ibid., § 2); Oxford Manual, Article 9(a) (ibid., § 3); Oxford Manual of Naval War, Article 16(2) (ibid., § 4).
[4] Report of the Commission on Responsibility (ibid., § 5).
[5] This development is reflected in Article 18 of the Hague Rules of Air Warfare (ibid., § 6), which states that “the use of tracer, incendiary or explosive projectiles by or against aircraft is not prohibited. This provision applies equally to states which are parties to the Declaration of St. Petersburg, 1868, and to those which are not.”
[6] See, e.g., the military manuals of Germany (ibid., § 13), Italy (ibid., § 14) and United Kingdom (ibid., §§ 18–19) and the statements of Brazil (ibid., § 28) and United States (ibid., §§ 35–36).
[7] See, e.g., the military manuals of Australia (ibid., §§ 8–9), Canada (ibid., § 11), New Zealand (ibid., § 15), Spain (ibid., § 17), United States (ibid., § 20), the legislation of Andorra (ibid., § 21), Australia (ibid., § 22), Ecuador (ibid., § 23) and Yugoslavia (ibid., § 26) and the statements of Brazil (ibid., § 28), Colombia (ibid., § 29), and Yugoslavia (ibid., § 37); see also the reported practice of Indonesia (ibid., § 30) and Jordan (ibid., § 31).
[8] See ICRC, Statement before the First Committee of the UN General Assembly (ibid., § 46) and Ensuring respect for the 1868 St Petersburg Declaration: Prohibiting the use of certain explosive projectiles, Report submitted to the Third Preparatory Committee for the Second Review Conference of the States Parties to the Convention on Certain Conventional Weapons (ibid., § 47).
[9] See, e.g., the military manuals of Australia (ibid., § 8), Germany (ibid., § 13), Italy (ibid., § 14) and Spain (ibid., § 17) (“total prohibition”) and the legislation of Andorra (ibid., § 21), Ecuador (ibid., § 23) and Yugoslavia (ibid., § 26); see also the legislation of Italy (ibid., § 24), the application of which is not excluded in time of non-international armed conflict.
[10] See, e.g., the statement of Yugoslavia (ibid., § 37) and the reported practice of Indonesia (ibid., 30) and Jordan (ibid., § 31).
[11] UN Secretary-General’s Bulletin, Section 6.2 (ibid., § 7).
[12] See, e.g., St. Petersburg Declaration (ibid., § 1) and the military manuals of Germany (cited in Vol. II, Ch. 20, § 58) and Russian Federation (ibid., § 78).