Practice Relating to Rule 78. Exploding Bullets

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. 

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. 

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 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. 

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. 

II.1.2. Prohibited munitions

The following types of munitions are prohibited:

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. 

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. 

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. 

i. Prohibited Weapons. The following weapons have been prohibited:

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:

… 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]. 

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. 

The manufacture, importation, circulation, possession, use, buying and selling and propaganda of the following weapons is forbidden:

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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. 

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]. 

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]. 

Articles 112–114 apply in the context of international armed conflicts, including in situations of occupation, and, if the nature of the offence does not exclude it, in the context of non-international armed conflicts.

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1 The penalty shall be a custodial sentence of not less than three years for any person who, in the context of an armed conflict:

Articles 264d–264j apply in the context of international armed conflicts, including in situations of occupation, and, if the nature of the offence does not exclude it, in the context of non-international armed conflicts.

…

1 The penalty shall be a custodial sentence of not less than three years for any person who, in the context of an armed conflict:

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. 

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. 

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. 

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. 

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.

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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. 

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:

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]. 

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. 

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. 

calls on all States to

The ICRC urges States which produce or transfer explosive projectiles under 400 grams which may explode within the human body urgently to:

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.