Practice Relating to Rule 78. Exploding Bullets
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St. Petersburg Declaration
The 1868 St. Petersburg Declaration states:
The Contracting Parties engage mutually to renounce, in case of war among themselves, the employment by their military or naval troops of any projectile of a weight below 400 grammes, which is either explosive or charged with fulminating or inflammable substances. 
Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight, St. Petersburg, 29 November–11 December 1868.

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Brussels Declaration
Under Article 13(e) of the 1874 Brussels Declaration, “the use of projectiles prohibited by the Declaration of St. Petersburg of 1868” is “especially forbidden”. 
Project of an International Declaration concerning the Laws and Customs of War, Brussels, 27 August 1874, Article 13(e).

Oxford Manual
Article 9(a) of the 1880 Oxford Manual states:
It is forbidden … to employ … projectiles … calculated to cause superfluous suffering, or to aggravate wounds – notably projectiles of less weight than four hundred grams which are explosive or are charged with fulminating or inflammable substances. 
The Laws of War on Land, adopted by the Institute of International Law, Oxford, 9 September 1880, Article 9(a).

Oxford Manual of Naval War
Article 16(2) of the 1913 Oxford Manual of Naval War provides:
It is forbidden … to employ … projectiles … calculated to cause unnecessary suffering. Entering especially into this category are explosive projectiles or those charged with fulminating or inflammable materials, less than 400 grammes in weight. 
The Laws of Naval War Governing the Relations between Belligerents, adopted by the Institute of International Law, Oxford, 9 August 1913, Article 16(2).

Report of the Commission on Responsibility
Based on several documents supplying evidence of outrages committed during the First World War, the 1919 Report of the Commission on Responsibility lists violations of the laws and customs of war which should be subject to criminal prosecution, including the “use of explosive … bullets”. 
Report submitted to the Preliminary Conference of Versailles by the Commission on Responsibility of the Authors of the War and on Enforcement of Penalties, Versailles, 29 March 1919.

Hague Rules of Air Warfare
Article 18 of the 1923 Hague Rules of Air Warfare provides:
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. 
Rules concerning the Control of Wireless Telegraphy in Time of War and Air Warfare, Part II, drafted by a Commission of Jurists, The Hague, December 1922–February 1923, Article 18.

UN Secretary-General’s Bulletin
Section 6.2 of the 1999 UN Secretary-General’s Bulletin provides: “The United Nations force shall respect the rules prohibiting … the use of certain weapons … These include, in particular, the prohibition on the use of … bullets which explode … in the human body.” 
Observance by United Nations Forces of International Humanitarian Law, Secretary-General’s Bulletin, UN Secretariat, UN Doc. ST/SGB/1999/13, 6 August 1999, Section 6.2.

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Australia
Australia’s Commanders’ Guide (1994) prohibits the use of “projectiles weighing less than 400 grams which are either explosive or charged with fulminating or inflammable substances (St. Petersburg)”. 
Australia, Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 932(f).

Australia’s Defence Force Manual (1994) states: “Bullets or other projectiles weighing less than 400 grams which are either explosive or contain fulminating or inflammable substances (exploding small arms projectiles) are prohibited.” 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 408.

Australia’s LOAC Manual (2006) states:
Bullets or other projectiles weighing less than 400 grams which are either explosive or contain fulminating or inflammable substances (exploding small arms projectiles) are prohibited. It should be noted however, that tracer and incendiary ammunition are not prohibited. 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 4.10.

Belgium
Belgium’s Law of War Manual (1983) proscribes the use of exploding bullets under 400 grammes, with reference to the 1868 St. Petersburg Declaration. 
Belgium, Droit Pénal et Disciplinaire Militaire et Droit de la Guerre, Deuxième Partie, Droit de la Guerre, Ecole Royale Militaire, par J. Maes, Chargé de cours, Avocat-général près la Cour Militaire, D/1983/1187/029, 1983, p. 37.

Burundi
Burundi’s Regulations on International Humanitarian Law (2007) states that “explosive projectiles below a weight of 400g” are “prohibited weapons”. 
Burundi, Règlement n° 98 sur le droit international humanitaire, Ministère de la Défense Nationale et des Anciens Combattants, Projet “Moralisation” (BDI/B-05), August 2007, Part I bis, p. 53; see also Part I bis, pp. 33 and 93.

Canada
Canada’s LOAC Manual (1999) states: “The following types of ammunition are prohibited: a. projectiles of a weight below 400 grams that are either explosive or charged with fulminating (exploding) or inflammable substances”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 5-2.

Canada’s LOAC Manual (2001) states in its chapter entitled “Restrictions on the use of weapons” that the following type of ammunition is prohibited: “projectiles of a weight below 400 grams that are either explosive or charged with fulminating (exploding) or inflammable substances”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 510.1.a.

Chad
Chad’s Instructor’s Manual (2006) prohibits the use of “explosive projectiles weighing less than 400 g”. 
Chad, Droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces armées et de sécurité, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 79.

Côte d’Ivoire
Côte d’Ivoire’s Teaching Manual (2007) provides in Book IV (Instruction of heads of division and company commanders):
II.1.2. Prohibited munitions
The following types of munitions are prohibited:
- projectiles of a weight below 400 grammes, which is either explosive or charged with fulminating or inflammable substances. 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre IV: Instruction du chef de section et du commandant de compagnie, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 52.

France
France’s LOAC Manual (2001) refers to the 1868 St. Petersburg Declaration. 
France, Manuel de droit des conflits armés, Ministère de la Défense, Direction des Affaires Juridiques, Sous-Direction du droit international humanitaire et du droit européen, Bureau du droit des conflits armés, 2001, p. 53.

Germany
Germany’s Military Manual (1992) states:
In the 1868 St. Petersburg Declaration the use of explosive and incendiary projectiles under 400 grammes was prohibited, since these projectiles were deemed to cause disproportionately severe injury to soldiers, which is not necessary for putting them out of action. This prohibition is only of limited importance now, since it is reduced by customary law to the use of explosive and incendiary projectiles of a weight significantly lower than 400 grammes which can disable only the individual directly concerned but not any other persons. 20 mm high-explosive grenades and projectiles of a similar calibre are not prohibited. 
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, August 1992, § 406.

Italy
Italy’s IHL Manual (1991) states: “It is specifically prohibited … to use explosive or incendiary projectiles of a weight below 400 grammes, except for air or anti-air systems.” 
Italy, Manuale di diritto umanitario, Introduzione e Volume I, Usi e convenzioni di Guerra, SMD-G-014, Stato Maggiore della Difesa, I Reparto, Ufficio Addestramento e Regolamenti, Rome, 1991, Vol. I, § 8(5).

Netherlands
The Military Manual (2005) of the Netherlands states:
The use of bullets which explode or ignite in the human body is forbidden. This prohibition does not apply to tracers, combined or otherwise with normal ammunition, or to exploding small-calibre ammunition intended to disable aircraft or materiel. 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0427.

New Zealand
New Zealand’s Military Manual (1992) prohibits the use of “projectiles weighing less than 400 grams which are either explosive or charged with fulminating or inflammable substances”. It adds:
The use of tracer and incendiary ammunition by the armed forces of belligerents was general during the Second World War and must be considered to be lawful. An argument can be made that the use of such ammunition is illegal if directed solely against combatant personnel because of the St Petersburg Declaration and [the 1907 Hague Regulations] Art. 23(e). This argument ignores the fact that the UN Conference which negotiated the [1980 Protocol III to the Convention on Certain Conventional Weapons], was unable to agree on any requirement to protect combatants from the effects of incendiary weapons.  
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 510(f) and footnote 49; see also § 617(f) and footnote 37 (air warfare).

Peru
Peru’s IHL Manual (2004) states that “exploding bullets” are prohibited weapons. 
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 31.b.(2).(a).

Peru’s IHL and Human Rights Manual (2010) states that “exploding bullets” are prohibited weapons. 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 32(b)(2)(a), p. 248.

Russian Federation
The Russian Federation’s Military Manual (1990) prohibits the use of various weapons that cause unnecessary suffering, including “projectiles weighing less than 400 grammes, which are either explosive or charged with fulminating or inflammable substances”. 
Russian Federation, Instructions on the Application of the Rules of International Humanitarian Law by the Armed Forces of the USSR, Appendix to Order of the USSR Defence Minister No. 75, 1990, § 6(c).

The Russian Federation’s Regulations on the Application of IHL (2001) states: “The following shall be prohibited to use in the course of combat operations: … projectiles of a weight below 400 grammes, which are either explosive or charged with fulminating or inflammable substances.” 
Russian Federation, Regulations on the Application of International Humanitarian Law by the Armed Forces of the Russian Federation, Ministry of Defence of the Russian Federation, Moscow, 8 August 2001, § 9.

Sierra Leone
Sierra Leone’s Instructor Manual (2007) provides: “It is prohibited to … [u]se weapons that can cause unnecessary suffering, e.g. exploding bullets or bullets that expand or flatten easily in human body to increase suffering.” 
Sierra Leone, The Law of Armed Conflict. Instructor Manual for the Republic of Sierra Leone Armed Forces (RSLAF), Armed Forces Education Centre, September 2007, p. 44.

South Africa
South Africa’s Revised Civic Education Manual (2004) states:
i. Prohibited Weapons. The following weapons have been prohibited:
(1) Explosive Projectiles Under 400g. St. Petersburg Declaration renouncing their use in 1868. 
South Africa, Revised Civic Education Manual, South African National Defence Force, 2004, Chapter 4, § 56(f)(i).

Spain
Spain’s LOAC Manual (1996) imposes a total prohibition on “the use of projectiles weighing less than 400 grammes which are explosive”. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, § 3.2.a.(2).

Spain’s LOAC Manual (2007) states that there is an absolute prohibition on the use of certain weapons, including “[p]rojectiles under 400 g in weight, which are either explosive or charged with fulminating or inflammable substances”. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 3.2.b.

Ukraine
Ukraine’s IHL Manual (2004) states that the use as a means of warfare of “explosive projectiles or those charged with fulminating or inflammable materials, less than 400 grams in weight” is prohibited. 
Ukraine, Manual on the Application of IHL Rules, Ministry of Defence, 11 September 2004, § 1.3.3.

United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958) states:
The international agreements limiting the means of destruction of enemy combatants are contained in [Article 23 of the 1907 Hague Regulations] and in three Declarations and one Protocol, by which the contracting parties, of which Great Britain is one, engage to:
(i) “to renounce in case of war amongst themselves, the employment by their military or naval troops of any projectile of a weight below 400 grammes … which is either explosive or charged with fulminating or inflammable substances” (Declaration of St. Petersburg, 1868)

… This work deals only with land warfare (whether conducted by land, sea or air forces) and therefore is not concerned with air warfare. However, attention must be drawn to the Air Warfare Rules drafted at the Hague in 1923 by a commission of jurists appointed by certain Governments. Art. 18 of that code provides as follows: “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 of 1868], and those which are not. During the Second World War such projectiles were used by the air forces of all belligerents … The use of tracer and incendiary ammunition by the armed forces of belligerents was general during the Second World War and must be considered to be lawful provided that it is directed solely against inanimate military targets (including aircraft). The use of such ammunition is illegal if directed solely against combatant personnel. This is so for two reasons, first the renunciation contained in the Declaration of St. Petersburg, 1868, referred to and second the prohibition in [Article 23(e) of the 1907 Hague Regulations]. 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 109 and footnote 1.

The UK LOAC Pamphlet (1981) states: “The following are prohibited in international armed conflict: a. explosive or inflammable bullets for use against personnel”. 
United Kingdom, The Law of Armed Conflict, D/DAT/13/35/66, Army Code 71130 (Revised 1981), Ministry of Defence, prepared under the Direction of The Chief of the General Staff, 1981, Section 5, p. 20, § 1(a).
(emphasis in original)
The UK LOAC Manual (2004) states:
6.10. The practice of states indicates that the use of explosive or incendiary bullets designed solely for use against personnel is not permissible under customary law.
6.10.1. The reason for this is because a solid round will achieve the military purpose of disabling the enemy combatant; if a round explodes on impact it would uselessly aggravate the injury. That does not prevent the use of tracer. Nor does it prevent the use of explosive or combined-effects munitions of, for example, 0.5 or 20mm calibre for defeating materiel targets, even though personnel may be incidentally wounded by them.
6.10.2. The parties to the St Petersburg Declaration 1868 undertook “mutually to renounce, in case of war among themselves, the employment by their military or naval troops of any projectile of a weight below 400 grammes, which is either explosive or charged with fulminating or inflammable substances”. Although it is not clear from the declaration itself whether anti-materiel, as opposed to anti-personnel, uses of explosive or incendiary bullets were also contemplated, it may be inferred from state practice that it was not. The Hague Rules of Aerial Warfare 1923, provided that “the use of tracer, incendiary or explosive projectiles by or against aircraft is not prohibited”. During the Second World War such projectiles were used by the air forces of all belligerents and tracer and incendiary ammunition has since been in general use by armed forces. Incendiary weapons are not prohibited by the Conventional Weapons Convention. The 400 gram limit in the St Petersburg Declaration is, in any event, obsolete as states have developed 20mm and 25mm combined-effects munitions which weigh less than 400 grams. The use of a tracer, or small incendiary or explosive projectiles, must be considered to be lawful if it is directed against inanimate military objectives, including aircraft, or is used for range-finding or target indication. It is also lawful to use tracer mixed with normal ammunition for range-finding or target indication at night against combatant personnel, for snipers to use combined-effects munitions against either materiel or personnel targets and for aircraft to strafe enemy combatants in the open. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, §§ 6.10–6.10.2.

United States of America
The US Air Force Pamphlet (1976) states: “International law has condemned … exploding bullets because of types of injuries and inevitability of death.” 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 6-3(b)(2).

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Andorra
Andorra’s Decree on Arms (1989) provides:
The manufacture, importation, circulation, possession, use, buying and selling and propaganda of the following weapons is forbidden:

11th Ammunition with hard centre perforating, explosive, incendiary, expanding, “dum-dum” and lead shot bullets as well as the projectiles of this kind of ammunition. 
Andorra, Decree on Arms, 1989, Chapter 1, Section II, Article 2.

Australia
Australia’s War Crimes Act (1945) considers “any war crime within the meaning of the instrument of appointment of the Board of Inquiry [set up to investigate war crimes committed by enemy subjects]” as a war crime, including the use of explosive bullets. 
Australia, War Crimes Act, 1945, Section 3.

Denmark
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment]. 
Denmark, Military Criminal Code, 1973, as amended in 1978, § 25(1).

Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment]. 
Denmark, Military Criminal Code, 2005, § 36(2).

Ecuador
Ecuador’s National Civil Police Penal Code (1960) punishes the members of the National Civil Police “who use or order to be used … exploding bullets”. 
Ecuador, National Civil Police Penal Code, 1960, Article 117(4).

Italy
Italy’s Law of War Decree (1938), as amended in 1992, provides: “It is prohibited … to use explosive or incendiary projectiles of a weight below 400 grammes, except for air or anti-air systems.”  
Italy, Law of War Decree, 1938, as amended in 1992, 1938, Article 35(5).

Netherlands
The Definition of War Crimes Decree (1946) of the Netherlands includes the “use of explosive … bullets” in its list of war crimes. 
Netherlands, Definition of War Crimes Decree, 1946, Article 1.

Yugoslavia, Socialist Federal Republic of
Under the Socialist Federal Republic of Yugoslavia’s Penal Code (1976), as amended in 2001, the use of, or the order to use, “means or methods of combat prohibited under the rules of international law, during a war or an armed conflict” is a war crime. 
Yugoslavia, Socialist Federal Republic of, Penal Code, 1976, as amended in 2001, Article 148(1).

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Brazil
At the Second Review Conference of States Parties to the Convention on Certain Conventional Weapons in 2001, Brazil stated that it “shared the concern that the 1868 St. Petersburg Declaration’s ban on the use of projectiles that might explode within the human body should not be subverted”. 
Brazil, Statement of 11 December 2001 at the Second Review Conference of States Parties to the Convention on Certain Conventional Weapons, Geneva, 11–21 December 2001, UN Doc. CCW/CONF.II/2, 2001, p. 85, § 71; see also Statement at the Third Preparatory Committee for the Second Review Conference of States Parties to the Convention on Certain Conventional Weapons, Geneva, 24–28 September 2001, UN Doc. CCW/CONF.II/PC.3/PV.1, 5 October 2001, p. 54.

Colombia
In 1975, during discussions in the Ad Hoc Committee on Conventional Weapons established by the CDDH, Colombia stated that “high-velocity small-calibre projectiles … were indeed comparable to exploding bullets” and should be prohibited. 
Colombia, Statement at the CDDH, Official Records, Vol. XVI, CDDH/IV/SR.14, 5 March 1975, pp. 132–133, § 9.

Indonesia
According to the Report on the Practice of Indonesia, the use of exploding bullets is prohibited in Indonesia. 
Report on the Practice of Indonesia, 1997, Chapter 3.4.

Jordan
According to the Report on the Practice of Jordan, Jordan does not use, manufacture or stockpile explosive bullets and it has no intention of possessing or using such weapons in the future. 
Report on the Practice of Jordan, 1997, Chapter 3.4.

Norway
In a letter to the ICRC in 2001, Norway stated:
We fully recognise the validity of the St. Petersburg Declaration and the customary law established on the basis of the Declaration. The principle set out in the Declaration should, however, be interpreted in the light of more recent international humanitarian law, and in particular the prohibition against employing weapons and ammunition that are of such a nature as to cause superfluous injury or unnecessary suffering. In the assessment of the legality of a particular weapon or kind of ammunition, there has been a clear practice among nations since 1868 of weighing the legality against the intended use of the weapon or ammunition. In such assessments several factors, such as distance from the target, intended target categories and depth of penetration are considered to be relevant when establishing the effect on the target. 
Norway, Letter to the President of the ICRC, 11 May 2001.

At the Second Review Conference of States Parties to the Convention on Certain Conventional Weapons in 2001, Norway stated that it “endorsed all efforts to strengthen the fundamental principle that the development and use of weapons systems deemed contrary to the 1868 St. Petersburg Declaration should be prevented”. 
Norway, Statement of 11 December 2001 at the Second Review Conference of States Parties to the Convention on Certain Conventional Weapons, Geneva, 11–21 December 2001, UN Doc. CCW/CONF.II/2, 2001, p. 83, § 58.

United Kingdom of Great Britain and Northern Ireland
In its written statement submitted to the ICJ in the Nuclear Weapons case in 1995, the United Kingdom stated that the 1868 St. Petersburg Declaration prohibited projectiles the use of which “was considered to be gratuitously cruel, because it caused horrific and almost invariably fatal injuries, while offering little or no military advantage over the use of ordinary ammunition”. 
United Kingdom, Written statement submitted to the ICJ, Nuclear Weapons case, 16 June 1995, § 3.65.

United States of America
In 1998, in a legal review of a 12.7 mm explosive bullet, the US Department of the Army stated: “A projectile that will explode on impact with the human body would be prohibited by the law of war from use for anti-personnel purposes. This remains the view of the US.” 
United States, Department of the Army, Office of the Judge Advocate General, DAJA-IO (27-1A), Subject: Mk211, MOD O, Cal. 50 Multi-purpose Projectiles: Legal Review, 19 February 1998.

The considerable practice of nations during this century suggests that States accept that an exploding projectile designed exclusively for antipersonnel use would be prohibited, as there is no military purpose for it. 
United States, Department of the Army, Office of the Judge Advocate General, DAJA-IO (27-1A), Subject: Mk211, MOD O, Cal. 50 Multipurpose Projectile: Legal Review, 14 January 2000, p. 17.

At the Third Preparatory Committee for the Second Review Conference of States Parties to the Convention on Certain Conventional Weapons in 2001, the United States stated that it agreed with the ICRC “that there is no valid military requirement for a bullet designed to explode upon impact with the human body”. 
United States, Statement at the Third Preparatory Committee for the Second Review Conference of States Parties to the Convention on Certain Conventional Weapons, Geneva, 24–28 September 2001, UN Doc. CCW/CONF.II/PC.3/PV.1, 5 October 2001, p. 54.

In November 2006, the US Departments of State and Defense released the details of a joint letter forwarded by those departments to the ICRC President regarding US Initial Reactions to the ICRC Study on Customary International Humanitarian Law. This letter stated in part:
Although anti-personnel bullets designed specifically to explode within the human body clearly are illegal, and although weapons, including exploding bullets, may not be used to inflict unnecessary suffering, rule 78, as written, indicates a broader and less well-defined prohibition. The rule itself suffers from at least two problems. First, it fails to define which weapons are covered by the phrase “bullets which explode within the human body.” To the extent that the Study intends the rule to cover bullets that could, under some circumstances, explode in the human body (but were not designed to do so), State practice and the ICRC’s Commentary on the 1977 Additional Protocol reflect that States have not accepted that broad prohibition. Second, there are two types of exploding bullets. The first is a projectile designed to explode in the human body, which the United States agrees would be prohibited. The second is a high-explosive projectile designed primarily for anti-materiel purposes (not designed to explode in the human body), which may be employed for anti-materiel and anti-personnel purposes. Rule 78 fails to distinguish between the two. If, as the language suggests, the Study is asserting that there is a customary international law prohibition on the anti-personnel use of anti-material exploding bullets, the Study has disregarded key State practice in this area. Third, the Study extrapolates the rule to non-international conflicts without a basis for doing so. 
United States, Joint letter to the ICRC President, Dr Jakob Kellenberger, from US Department of State Legal Adviser, John B. Bellinger, and US Department of Defense General Counsel, William J. Haynes, on US Initial Reactions to the ICRC Study on Customary International Humanitarian Law, 3 November 2006.

Yugoslavia, Socialist Federal Republic of
In a statement in 1991, the Supreme Command of the Yugoslav People’s Army (YPA or JNA) of the Socialist Federal Republic of Yugoslavia stated:
The authorities and Armed Forces of the Republic of Slovenia are treating JNA as an occupation army; and are in their ruthless assaults on JNA members and their families going as far as to employ means and methods which were not even used by fascist units and which are prohibited under international law … They are … using explosive bullets. 
Yugoslavia, Socialist Federal Republic of, YPA Supreme Command, Statement, 1 July 1991, TANJUG, Belgrade.

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Expert Meeting on Exploding Projectiles of 12.7 mm and Below
In 1999, the ICRC organised an Expert Meeting on Exploding Projectiles of 12.7 mm and Below to which military, legal and ballistic governmental experts from Belgium, Norway, Switzerland and the United States (i.e. countries that produce and/or stock 12.7 mm multipurpose bullets) were invited in their personal capacity. The summary report of the meeting, reviewed and accepted by all participants, stated that there was a general consensus, in relation to projectiles of 12.7 mm and below:
The prohibition on the intentional use against combatants of such projectiles which explode upon impact with the human body, which originated in the 1868 St. Petersburg Declaration, continues to be valid.
The targeting of combatants with such projectiles the foreseeable effect of which is to explode upon impact with the human body would be contrary to the object and purpose of the St. Petersburg Declaration.
There is no military requirement for a projectile designed to explode upon impact with the human body.

States producing such projectiles notify past and future recipients of these projectiles that their intentional use against combatants is a violation of the Law of Armed Conflict. 
Expert Meeting on Exploding Projectiles of 12.7 mm and Below, Geneva, 29–30 March 1999, Summary.

Second Review Conference of States Parties to the Convention on Certain Conventional Weapons
The Final Declaration of the Second Review Conference of States Parties to the Convention on Certain Conventional Weapons in 2001 took note of “the report of the International Committee of the Red Cross on ‘Ensuring respect for the 1868 St. Petersburg Declaration prohibiting the use of certain explosive projectiles’ (dated 18 September 2001)” and invited “States to consider this report and other relevant information, and take any appropriate action”. 
Second Review Conference of States Parties to the Convention on Certain Conventional Weapons, Geneva, 11–21 December 2001, Final Declaration, UN Doc. CCW/CONF.II/2, 2001, p. 9.

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ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that: “The use of projectiles of a weight below 400 grammes, which are either explosive or charged with fulminating or inflammable substances, is prohibited.” 
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 916.

The ICRC Commentary on the Additional Protocols states:
1419. The specific applications of the prohibition formulated in Article 23, paragraph 1(e), of the Hague Regulations, or resulting from the Declarations of St. Petersburg and The Hague, are not very numerous. They include:
1. explosive bullets …
1420. The weapons which are prohibited under the provisions of the Hague Law are, a fortiori, prohibited under [Article 35(2) of the 1977 Additional Protocol I]. 
Yves Sandoz et al. (eds.), Commentary on the Additional Protocols, ICRC, Geneva, 1987, §§ 1419–1420.

In 1998, in a statement in the First Committee of the UN General Assembly, the ICRC declared:
The ICRC considers the 1868 St. Petersburg Declaration, renouncing the use of exploding bullets, to be a cornerstone of efforts to protect soldiers from superfluous injury or unnecessary suffering. It is disturbing to learn that some armed forces are considering the use of bullets which will explode on impact with soft targets. The ICRC calls on all States rigorously to review, in accordance with article 36 of the 1977 Additional Protocol I, their procurement policies. 
ICRC, Statement before the First Committee of the UN General Assembly, UN Doc. A/C.1/ 53/PV.9, 19 October 1998, p. 19.

In 1999, in a statement in the First Committee of the UN General Assembly, the ICRC expressed concern about a “multipurpose” bullet, some versions of which exploded on impact with the human body. It further stated:
The 1868 St. Petersburg Declaration prohibited the use of explosive bullets in order to protect soldiers from suffering which serves no military purpose and is therefore contrary to the laws of humanity. It is disturbing to learn that in recent years bullets capable of exploding on impact with a human body have been produced, sold and used. In early 1999 the ICRC hosted a meeting of technical and legal governmental experts, who reaffirmed that the proliferation of such bullets is a serious problem and undermines the very purpose of the St. Petersburg Declaration. We urge all States to refrain from the production and export of such bullets and urge those that possess them to strictly prohibit their use against persons, a practice which violates existing law. The ICRC expects to report on this problem and seek appropriate action during the 2001 CCW Review Conference. 
ICRC, Statement before the First Committee of the UN General Assembly, UN Doc. A/C.1/ 54/PV.12, 20 October 1999, p. 31.

In a report submitted in 2001 to the Third Preparatory Committee for the Second Review Conference of States Parties to the Convention on Certain Conventional Weapons, the ICRC recalled the consensus expressed by the participants in the 1999 Expert Meeting on Exploding Projectiles of 12.7 mm and Below and
calls on all States to
– take steps to ensure that explosive projectiles under 400 grams which may explode within the human body are not produced, used or transferred;
– undertake a rigorous review, as required by Article 36 of Protocol I of 1977 Additional to the Geneva Conventions of 1949, before acquiring or developing explosive projectiles under 400 grams and sniper rifles capable of using such projectiles in order to ensure that such projectiles will not explode within the human body.
The ICRC urges States which produce or transfer explosive projectiles under 400 grams which may explode within the human body urgently to:
– Inform past recipients of such projectiles that their use against combatants is prohibited under international humanitarian law.
– Suspend the production and export of such projectiles until they have been adapted so as to ensure that their use against combatants will not contravene the object and purpose of the St Petersburg Declaration. This would involve testing, redesign and other steps to ensure that the chance of the projectile’s explosion within the human body (whether soft tissue or bone) has been eliminated. 
ICRC, 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, UN Doc. CCW/CONF.II/PC.3/WP.6, 18 September 2001, p. 4.
[emphasis in original]
At the Third Preparatory Committee for the Second Review Conference of States Parties to the Convention on Certain Conventional Weapons in 2001, the ICRC stated:
The object and purpose of the 1868 [St. Petersburg] Declaration to protect combatants from unnecessary suffering or death from explosive projectiles remains valid and in the view of the ICRC is part of the rules of customary international law. 
ICRC, Statement at the Third Preparatory Committee for the Second Review Conference of States Parties to the Convention on Certain Conventional Weapons, Geneva, 24–28 September 2001, UN Doc. CCW/CONF.II/PC.3/PV.1, 5 October 2001, p. 55.

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