首页    期刊浏览 2022年01月22日 星期六
登录注册

文章基本信息

  • 标题:Just say no! The SIrUS project: well-intentioned, but unnecessary and superfluous - principle of superfluous injury or unnecessary suffering - International Committee of the Red Cross program
  • 作者:Donna Marie Verchio
  • 期刊名称:Air Force Law Review
  • 印刷版ISSN:0094-8381
  • 电子版ISSN:1554-981X
  • 出版年度:2001
  • 卷号:Spring 2001
  • 出版社:U.S. Air Force. Judge Advocate General School

Just say no! The SIrUS project: well-intentioned, but unnecessary and superfluous - principle of superfluous injury or unnecessary suffering - International Committee of the Red Cross program

Donna Marie Verchio

MAJOR DONNA MARIE VERCHIO *

Editor's Note: In 1997, the International Committee of the Red Cross (ICRC) began a program entitled SirUS. It was designed to be used in making determinations as to the legality of weapons of war. This Article maintains that the underlying purpose of the Program was to wrest the responsibility for the determination of the legality of weapons from governments through the use of flawed and politically-motivated data. Following criticism, the ICRC suspended SIrUS in the spring of 2001. This article tracks events leading up to the Program's demise and outlines U.S. procedures for conducting legal reviews of new weapons. Maintaining that similar issues are likely to occur in the future, this article, through documenting the history of the SIrUS Program, maintains that such efforts are flawed and that the process of determining legality should be left to sovereign states.

Imagine it's the year 2025. Several nations, including the United States, have developed a new anti-personnel laser that discharges a programmable "energy ray" at its target. If the laser is set at its highest level, it will instantaneously reduce the human body to a pile of ashes. At lower settings, the laser "stuns" the target, producing seconds to minutes of unconsciousness. These nations intend to incorporate the laser into their battlefield arsenals. It is economical, and easy to train upon and maintain. Their goal is to supplement, and ultimately replace, the use of kinetic energy weapons on the battlefield.

The United States reviewed the weapon according to relevant treaty and customary international law and determined that the laser complies with its international obligations. However, other nations, especially those unable to procure the laser for their own arsenals, disagree. They seek an international conference to either ban the laser, or delay its deployment until they too can acquire it. The International Committee of the Red Cross (ICRC) (1) strenuously denounces the design and use of the laser. Founders of the SIr US Project, (2) working under the auspices of the ICRC, begin a campaign to stigmatize the use of the laser. They claim the laser causes unnecessary suffering or superfluous injury (3) because it exceeds their theoretical health-based standards for determining the legality of weapons. (4)

I. INTRODUCTION

This article will trace the historical development of the internationally recognized principle of unnecessary suffering or superfluous injury. It will analyze current treaty and customary international law approaches used to determine whether a particular weapon causes unnecessary suffering or superfluous injury. The ICRC-sponsored SIrUS Project will be examined from its origin in 1997, through its subsequent non-substantive revisions in January 2000 (5). The SIrUS Project's opposition to laser weapons uses an impracticable, one-dimensional, health-effects-based criteria. It will argue that international compliance with the weapons review requirement of Protocol I, Article 36, is a better way to determine if a weapon causes unnecessary suffering or superfluous injury. The United States' law of war program, and its weapons review program, (6) will then be examined and advanced as an international model for the ICRC to promote. This article proposes that the ICRC shift its focus away from the SIrUS Project and instead advocate for international compliance with Protocol I, Article 36. through its recognized role as "guardian" of the Geneva Conventions. (7) Why? Because it is the inherent responsibility of sovereign nations, not non-governmental organization (NGOs), (8) such as the United Nations (UN), to determine whether a weapon causes unnecessary suffering or superfluous injury. This article will consider the following questions:

(1) Should the determination of "unnecessary suffering or superfluous injury" be assessed solely with regard to so-called "objective health-based criteria" espoused by the SIrUS Project? Why SIrUS?

(2) Is the problem developing weapons that may cause "superfluous injury or unnecessary suffering," or the illegal use of lawful weapons, as in Kuwait (by Iraq), Angola, the Balkans, Sierra Leone, East Timor, and elsewhere?

(3) Is there a clearly identified problem of illegal use of weapons in international armed conflict? Or, is SIrUS an ICRC expression of frustration with the anarchy of post-Cold War collapse of governments (Somalia, the Balkans), ethnic violence (the Balkans, East Timor), and violence against civilians in less-developed nations' internal conflicts (Angola, Eritrea, and elsewhere)?

(4) Should weapons reviews continue to make "unnecessary suffering or superfluous injury" determinations according to objective principles of military necessity, distinction, proportionality, and humanity applied subjectively by sovereign nations?

(5) Currently, the trend is for nations to come together at Weapons Conventions to outlaw specific weapons. They do not use objective criteria, and the vote to outlaw is by consensus. Is this effective?

(6) What is the best approach to fill the "unnecessary suffering or superfluous injury" vacuum left undefined by treaty and customary international law? Is a more stringent adherence to Protocol I-mandated weapons review programs (similar to that of the United States') a better approach than the implementation of the SIrUS Project?

(7) Whose bailiwick is it anyway? In other words, who should be responsible to determine whether a particular weapon causes "unnecessary suffering or superfluous injury," governments, NGOs, or the UN?

II. THE HISTORICAL DEVELOPMENT OF UNNECESSARY SUFFERING OR SUPERFLUOUS INJURY

The regulation of unnecessary suffering or superfluous injury is a longstanding concept in the law of war. "[A]s weapons become more fearsome, a feeling of fair play or chivalry began to revolt against the use of some weapons, along with the fear of retaliation in kind, or escalation." (9) In 1139 A.D., the Roman Catholic Church's Second Lateran Council took the first known official action outlawing a weapon. (10) The Council outlawed the crossbow, calling it a weapon, "hateful of God and unfit for Christians." (11) The prohibition was short-lived. Richard I re-introduced the crossbow during his reign (1189-1199). It continued in military service until it became obsolete more than three hundred years later. (12) Centuries later, efforts were made to outlaw the use of muskets, with no lasting success. (13) The situation at that point in history (14) is the same we observe today--no weapon has been effectively restricted or eliminated by international regulation.

In 1625, Hugo Grotius advocated humanity in war, saying, "it behooves Christian princes to prohibit all unnecessary effusion of blood, as they must render an account of their sovereign commissions to him, by whose authority, and in whose stead, they bear the sword." (15) Great philosophers, like Jean Jacques Rousseau, continued to echo and expand the thoughts of Grotius. In the late 18th century, Rousseau wrote in, "The Social Contract,"

[T]he end in war is to defeat the enemy and in doing so there is a right to kill its defenders while they remain armed, but as soon as they lay them down or surrender they cease to be enemies or instruments of the enemy, and become once more merely men, whose lives no one has any right to take. (16)

Rousseau believed there should be a distinction between combatants and non-combatants and that, "there is no right to inflict more suffering than is necessary for the attainment of victory." (17) These thoughts became part of the modern codifications of the law of war principle of unnecessary suffering and superfluous injury (18) found in the Lieber Code (19) and the St. Petersburg Declaration. (20)

In 1863, the Lieber Code, during United States Civil War era, related combatant suffering to the concept of military necessity. (21) It expressly prohibited, "the infliction of suffering for the sake of suffering." (22) Thus, suffering should be avoided if not a military necessity. In warfare then, the injury and suffering caused must not be superfluous or unnecessary when balanced against the intended military purpose. The St. Petersburg Declaration of 1868 expressly recognized the purpose of combat to, "disable the greatest possible number of men," but further qualified that statement by asserting, "this object would be exceeded by the employment of arms which would uselessly aggravate the suffering of disabled men or render their death inevitable." (23)

In summary, the Lieber Code limited enemy suffering to military necessity. The St. Petersburg Declaration codified unnecessary suffering or superfluous injury and placed restrictions on the methods and means of warfare, particularly the use of certain weapons that exceeded humanitarian principles. Neither the Code nor the Declaration acquired the status of international law at that time. (24) However, their principles were the basis for the Brussels Conference of 1874, and the subsequent Hague Conventions of 1899 and 1907. (25)

The Brussels Conference convened in 1874 to, "examine the draft of an international agreement concerning laws and customs of war submitted to them by the Russian Government." (26) While an amended draft was adopted, it never became a binding convention because it was not ratified. (27) However, the real importance of the Brussels Convention was that it provided the basis for language incorporated into the subsequent Hague Regulations. (28)

The Hague Conferences of 1899 and 1907 reaffirmed, in treaty format, the overarching principles of the St. Petersburg Declaration and the Leiber Code. The Hague regulations stated, "that the necessities of war ought to be measured against the requirements of civilization and humanity...." (29) Three declarations were adopted at the 1899 Conference. These declarations banned specific weapons, to include: the launching of projectiles from balloons and other methods of a similar nature, (30) asphyxiating gases, (31) and expanding bullets (also known as dum-dum bullets). (32) The declarations were adopted on humanitarian grounds. (33) The Hague Convention IV of 1907 regulated the law of armed conflict on land. The regulations annexed to this Convention are its most important element. These rules of warfare are considered principles of customary international law to the extent they have not been amended by subsequent treaties. (34)

Like the 1899 Conference, the Hague Convention IV of 1907 also set out humanitarian limitations on weapons used in warfare, declaring, "the right of belligerents to adopt means of injuring the enemy is not unlimited." (35) Convention IV expressly recognized limitations on the means and methods of warfare. It prohibited contracting parties from using "arms, projectiles or material calculated to cause unnecessary suffering." (36) However, the term "unnecessary suffering" was not defined. Other than recodifying the customary law prohibition on the use of poison, no specific weapons were mentioned. (37) An important result of the Hague Convention IV was that the balancing equation between military necessity and the requirements of humanity became binding treaty law. Through state practice, the same balancing test is binding on all nations as firmly rooted customary international law. (38)

The preamble to the Hague Convention IV, also known as the Martens Clause, (39) provides guidance for situations not addressed by the convention:

Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they may result from the usages established among civilized peoples, from the laws of humanity, and the dictates of public conscience. (40)

Forty years later, the Geneva Conventions of 1949 codified the next set of major limitations on the amount of suffering in war. They focused on protecting the victims of war. (41) From 1974 to 1977, a Swiss-hosted multinational diplomatic conference developed two protocols to the 1949 conventions. These protocols further defined and expanded upon The Hague and Geneva Conventions. Protocol I reaffirmed the limitations placed on the conduct of hostilities and clarified previous ambiguities. It prohibited "weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering." (42) Additionally, Protocol I mandated that contracting parties review weapons in all phases of development to determine their legality under all international obligations binding that party. (43)

The United States has not ratified Protocol I. However, the United States had a weapons review program before Protocol I's mandate for weapons review was even considered. Furthermore, the United States acknowledges an obligation to follow article 35(2) of Protocol I to the extent that it is consistent with article 23(e) of Hague Convention IV. (45)

Unfortunately, the vast majority of state parties to Protocol I do not comply with the Article 36 mandate. (46) In January 2001, twenty-five years after the promulgation of Protocol I and its Article 36, the ICRC had a brief meeting of military, legal and medical experts at Jongny sur Vevey, Switzerland. (47) The validity of the SIrUS Project was debated. (48) aside from this meeting, the ICRC has focused neither its efforts, nor its resources, towards promoting international compliance with the weapons review mandate of Protocol I through education, training, or encouragement. (49)

The ICRC joined the rest of the world in the post-World War I movement against chemical weapons. However, the ICRC's forte (and mandate from the governments that finance it) is the protection of war victims, not warfighting and weapons issues. (50) In 1973, the ICRC became involved in conventional weapons issues after criticism over U.S. weapons used in the Vietnam War. The ICRC knew that weapons issues would be discussed at the 1974-1977 Diplomatic Conference that promulgated Protocols I and II. It published an initial document, then hosted meetings of experts in Lucerne in 1974, and Lugano in 1976. (51) The experts held lengthy meetings, but reached no conclusions regarding any weapon. They specifically declined to say that any existing conventional weapon violated the prohibition on weapons calculated to cause unnecessary suffering or superfluous injury.

Proponents wanted new bans on existing conventional weapons incorporated into ICRC draft texts prepared for the 1974-1977 Diplomatic Conference. (52) The ICRC opposed specific weapons restrictions in its draft text for several reasons:

(1) The question of arms and their prohibitions is dealt with by other organizations, including the United Nations;

(2) The prohibition of specific weapons has always been the subject of legal instruments separate from the Geneva Conventions. The ICRC preferred to approach the weapons limitation issue through more effective rules for the use of lawful weapons, rather than prohibitions of weapons; and

(3) A prohibition of a specific weapon should be the subject of a different conference and different treaty. (53)

During the 1974-1977 Diplomatic Conference, an Ad Hoc Committee met to study the conventional weapons legality issue. (54) It reached no conclusions, but prepared Resolution 22, "Follow-up regarding Prohibitions or Restriction of Use of Certain Conventional Weapons." (55) Resolution 22 was adopted at the conclusion of the Diplomatic Conference. It called for the United Nations to convene a conference to consider the legality of certain conventional weapons, a procedure the UN began with preparatory sessions in 1978. (56) It then convened the United Nations Conference on Prohibitions or Restrictions on the Use of Certain Conventional Weapons, which may be deemed to be Excessively Injurious or to have Indiscriminate Effects. (57) On October 10, 1980, the Conference concluded with a treaty of the same name, and three protocol. (58)

The debate over the Vietnam War, and the decade of negotiations following that conflict, did not produce revolutionary results. The following table summarizes the weapons (or purported weapons) considered and the results of the 1980 UN Conventional Weapons Conference: (59)

A Decade of Debate: Results of the UN Conference On the Legality of
Certain Conventional Weapons, 1978-1980

Weapon or Purported Weapon        Result

Cluster bombs                     No restriction.

"Plastic fragments"               Protocol I, UNCCW, prohibiting
                                  certain nondetectable fragments
                                  (a nonexistent weapon).

Land mines, booby traps and       Protocol II, UNCCW, regulating each
other devices.                    to provide protection for the
                                  civilian population. No
                                  prohibition on use against
                                  combatants.

Incendiary weapons                Protocol, III, UNCCW, providing
                                  restrictions on use to protect
                                  civilians. No prohibition on use
                                  against combatants.

Fuel air explosives               No restriction.

Small-caliber projectiles         No restriction.

Directed-energy weapons (lasers,  No restriction.
particle beam weapons)

Flechettes                        No restriction.

An extensive, formal, and multi-national discussion of certain conventional weapons produced a treaty with civilian population protections (60) However, there was no prohibition against the use of an existing weapon against combatants. This suggests that the threshold for a weapon to cause unnecessary suffering or superfluous injury is a high one. The effects of a weapon must be weighed against those of other lawful weapons. (61)

Adding the 1978-1980 negotiations record to the 1994-1996 first review conferences for the UNCCW produces the following:

First Review Conference for the UNCCW, 1994-1996

Weapon or Purported Weapon    Result

Mines, booby-traps and Other  Protocol II substantially amended
devices                       to improve protection for civilian
                              population. No restrictions to
                              protect combatants.

Blinding laser weapons        Protocol IV prohibits non-existent
                              weapons. As such, it is more like
                              an arms control document. The
                              protocol does not conclude that
                              blinding laser weapons cause
                              unnecessary suffering or
                              superfluous injury.

Small-caliber projectiles     A Swiss proposal, offered for
                              economic more than humanitarian
                              purposes, was withdrawn before
                              conclusion of conference after
                              receiving virtually no support
                              from States Parties.

The second UNCCW Review Conference was held in Geneva, Switzerland, beginning with a preparatory session held April 2-6, 2001 (62) Anticipating the review conference, the United States hosted a limited meeting of interested governments at the Center for Law and Military Operations, The Judge Advocate General's School, U.S. Army, in Charlottesville, Virginia from February 20-2 1, 2001. (63) Topics discussed included cluster munitions and other unexploded ordnance, further improvements to the Amended Mines (64) Protocol, and extending the scope of the UNCCW to internal conflicts. This suggests that the second UNCCW Review Conference will mirror the work of its predecessors, seeking improved protection for civilians in time of war. Clearly, governments see the issue of unnecessary suffering in terms of increasing protection for civilians, particularly in internal conflicts, rather than an epidemic of weapons used against combatants that cause unnecessary suffering or superfluous injury.

Over the years, governments have used two legal regimes to consider whether a weapon causes unnecessary suffering or superfluous injury. (65) The first is the legal review process. This process is the responsibility of governments, and is based on objective treaty and customary law principles of military necessity, distinction, proportionality, and humanity. These principles are balanced to render a good faith decision on a weapon's legality. Each sovereign nation is ultimately responsible, along with its respective weapons review program, for deciding whether a weapon is lawful or unlawful.

The second method uses the conference mechanism of the 1980 UN Conventional Weapons Convention. (66) At these conferences, governments meet to consider issues regarding certain conventional weapons. (67) Proposals are tabled to regulate or prohibit particular weapons based on the international consensus of States Parties to the UNCCW. (68) To date, these conferences have not banned any weapon on the basis that it causes superfluous injury or unnecessary suffering. Detailed rules have been promulgated for certain weapons to increase protection for civilian populations. (69) However, other groups and nations wish the UN could go farther with these conferences. (70) One frustration shared by the United States and the ICRC is the inability to extend the scope of the UNCCW to conflicts not of an international character. (71) Often, these conflicts are where the greatest suffering occurs. This issue will be considered at the second UNCCW Review Conference. (72)

Both regimes--one long standing, the other relatively new--work to control the potentially negative effects of war within their frameworks. However, the ICRC believes this is not enough. (73) Is there a more objective way to determine what constitutes unnecessary suffering or superfluous injury? The ICRC, through its sponsorship of the SIrUS Project, believes so. 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.

III. THE SIRUS PROJECT

A new approach to define and quantify the principle of unnecessary suffering or superfluous injury has recently emerged from the gathering and interpretation of medical data. Dr. Robin Coupland, an ICRC physician and surgeon, wrote several articles on weapons and their wounding effect from a field surgeon's point of view. (74) One of these articles, originally a paper presented at an ICRC-hosted symposium, entitled, The Medical Profession and the Effects of Weapons, (75) appears to be the genesis of the SIrUS Project. (76)

The Medical Profession and the Effects of Weapons proposed certain parameters that could be used to establish a baseline to objectively measure the legal and philosophical concept of "superfluous injury and unnecessary suffering." (77) According to Coupland, the SIrUS Project aimed, "to place on an objective comprehensible basis what is already obvious: that the effects on human beings of weapons commonly used by armies now are bad enough so that if possible anything worse should be prevented." (78) SIrUS Project supporters know that an obligation already exists for countries to determine the legality of any new means of warfare they are procuring or developing.

Their second declared goal was, "to facilitate such determination without legal wrangling about certain materials and technologies." (79) Coupland asserts that because weapons are being developed with differing effects on the human body, "it is essential that some yardstick of injury and suffering be created against which the effect of any weapon can be measured." (80) The SIrUS Project's proposed yardstick was, "the effects of weapons on health." (81) The Project used the ICRC's field hospital database to create the Project's health-effects criteria. (82)

The ICRC database purportedly contains information on 26,636 "war-wounded" admitted to ICRC field hospitals. (83) Herein lie several major SIrUS flaws. First, its war-wounded figures are primarily for wounded civilians of varying ages and health. Second, these casualties come from internal conflicts in the least-developed nations. In those areas, emergency medical care is primitive and often days away. Finally, the data lacks transparency and was not subjected to peer review. (84)

Undeterred, and claiming it to be "the best index of injury and suffering available," (85) the database information was, "analyzed to measure the collective effects of different conventional weapons, i.e., the effects measured as a proportion of all people injured by a certain type of weapon causing the wound." (86) The parameters measured include: the proportion of large wounds; mortality; the relative proportion of central and limb injuries; the duration of hospital stays, the number of operations required, the requirement for blood transfusion; and the extent of severe and permanent disability in the survivors. (87)

Conventional anti-personnel weapons other than anti-personnel land mines and incendiary weapons--an intentionally selective and artificial range, were considered as the baseline because, "up to now, neither law nor public opinion in general has wanted to prohibit these weapons because of their design-dependent effects." (88) SIrUS asserts that by collating its data with data from military publications, certain effects of conventional weapons have been quantified. The quantified data can be used to determine what is not "superfluous injury or unnecessary suffering." (89) A clear, and purportedly "objective," distinction is then drawn between the effects of conventional weapons and the effects of all other weapons. The SirUS_Project proponents believe this distinction can be expressed in terms of criteria. (90)

A group of SIrUS Project experts defined the criteria. They said that the design-dependent, foreseeable effects of weapons should determine superfluous injury or unnecessary suffering. (91) Weapons would be deemed to cause superfluous injury or unnecessary suffering when they are used against human beings and cause:

(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. (92)

In the SIrUS briefings to support his criteria, Coupland categorized conventional weapons in the following manner:

Weapons (by effect on health) (93)

Health effects seen in recent  Health effects note commonly
conflicts                      seen

Grenades                       Electromagnetic
Mortars                        Napalm/Chemical weapons Bombs
Mines                          Laser/Biological weapons
Shells                         Flame throwers
Bullets                        Acoustic
Missiles

Some errors or distortions of fact and law are obvious in these categorizations. Napalm, flame-throwers, and other incendiary weapons are regulated to protect civilians by Protocol III, UNCCW. (94) Their use against combatants is not prohibited, and the international community has not concluded that they cause unnecessary suffering or superfluous injury of combatants. (95) Also, notwithstanding the lack of recent use of incendiary weapons, burn injuries are common to war, and there is extensive medical data on them. (96)

All mines have not been prohibited, and anti-personnel mines have been regulated (or, per the Ottawa Convention, prohibited). (97) This regulation arose due to irresponsible use causing indiscriminate effects in some conflicts. (98) The regulation did not occur because the international community concluded that they cause unnecessary suffering or superfluous injury to combatants. (99) There is also a massive amount of medical data on mine injuries. These injuries are nothing if not "commonly seen." (100)

Consider the more "unconventional" weapons. For example, all lasers have not been prohibited. The Blinding Laser Protocol (Protocol IV, UNCCW) did not conclude that either blinding, or laser weapons per se, cause unnecessary suffering or superfluous injury. (101) Additionally, chemical and biological weapons have been restricted by arms control agreements. These restrictions are not due to any conclusion that either expressly or necessarily contravenes the prohibition on weapons that cause unnecessary suffering or superfluous injury. (102) There is no known data on either electromagnetic or acoustic weapons because no such weapons have been fielded. (103)

Finally, injuries "not commonly seen" suggests that if a nation has a weapon in its inventory, it must use it each time it engages in combat before such injuries are "commonly seen." This "use or lose" approach is not consistent with either military history or good military practice. For example, a flamethrower is a weapon of choice for the assault of fortified emplacements, but not for a high mobility war, or long infantry patrols. These examples illustrate the SIrUS Project's highly academic, yet impractical, approach.

A. Analysis of the SIrUS Project Criteria

As indicated above, the SIrUS Project believes that each criterion is an independent basis for determining whether a weapon causes unnecessary suffering or superfluous injury. In analyzing these criteria, the first four will be analyzed as a group; the remaining three will be analyzed separately. (104) A critique of the SIrUS Project as a whole will follow.

1. Criteria 1-4 - Specific Disease, Abnormal State, Disability, or Disfigurement

According to these criteria, any conventional weapon that causes any foreseeable disease, abnormal psychological or physiological effect, or disfigurement, would be illegal under international law. (105) Criteria 1-4 apply to chemical and biological weapons, most of which have already been prohibited by treaty law. They also apply to point-detonating anti-personnel mines, some of which SIrUS supporters claim have also been prohibited by treaty law. While these weapons may have been prohibited, it was not because the international community concluded that the injuries to combatants constituted unnecessary suffering or superfluous injury. Criteria 1-4 would also apply to weapons designed to cause a specific physical trauma, and weapons designed to disorient, confuse, induce calm or precipitate seizures or psychosis. (106) SIrUS is also targeting blinding laser weapons and all classes of non-lethal weapons. (107)

At a minimum, qualitative and quantitative limits for these criteria, especially regarding the duration and degree of impairment, should be defined. These criteria fail to take into account the risk to which a soldier is exposed on a conventional battlefield. The basic premise underlying the law of war and

the legality of weapons is that soldiers may suffer death or serious bodily harm as a result of the lawful use of lawful weapons. As Colonel Alex Hawley, Chief of Staff, Army Medical Directorate, United Kingdom, explained at the Jongny sur Vevey meeting, the soldier's dilemma is that he may be required to take the life of another, or others, and he (or she) may have his life taken from him or her. (108)

As written, the criteria could lead to a categorical ban on these classes of non-lethal weapons before they are even developed. This could lead to perverse outcomes such as the decision to use a more lethal weapon with potentially more serious consequences to an enemy soldier. Moreover, if severe limitations were placed on the incapacitating effect of a weapon, individual soldiers would likely respond by firing more rounds at the enemy, causing greater wounds and an increased chance of death. Also, a more precise definition is needed for "disfigurement." Disfigurement frequently occurs from burn, penetrating, blast and other injuries inflicted by legal weapons.

The criteria also draw an artificial distinction between the effects of lawful conventional weapons (except point-detonating anti-personnel mines and anti-materiel weapons) and the effects of all other weapons. (109) By doing so, the SIrUS Project ignores the treaty and customary law principles of military necessity and proportionality, and categorically bans all non-lethal weapons. Oddly, it is the non-lethal weapons that have the potential for dramatically reducing battlefield deaths.

These criteria fail to account for the reality of a pitched battle, where soldiers are exposed to a variety of lethal anti-personnel and anti-materiel weapons. In his recap of the famous October 3, 1993 battle in Mogadishu, Mark Bowden describes a Task Force Ranger who lost his leg to a rocket-propelled grenade. (110) These types of wounds, usually fatal, can be found described in current military medical literature. (111) Similar historical examples abound. A 20mm projectile decapitated a British soldier while fighting in France in 1944; Jock Lewes, co-founder of the British Special Air Service, died when struck in the leg by a German 20mm cannon shell that severed the main artery. (112) By excluding lawful wound-producing mechanisms common to the battlefield, and data related to their wounds or mortality rates, the SIrUS Project undermines its purported intent: to provide "objective" criteria for determining whether new weapons cause unnecessary suffering and superfluous injury.

Criterion 2 applies to exploding bullets, dum-dum bullets, and most incendiary weapons. (113) Once again, SIrUS ignores the fact that in some cases, after balancing military necessity against unnecessary suffering or superfluous injury principles, the use of a incendiary weapon, rather than a multitude of accepted conventional weapons, could actually save lives. The fallacy of this criterion, and its condemnation of incendiary weapons, is that governments, carefully weighing the value and risks of incendiary weapons at the original UNCWC conference (1978-1980), specifically rejected calls from a minority to prohibit their use against combatants. (114)

2. Criterion 5--Field and Hospital Mortality Rates

This criterion defines a weapon causing an injury that has a field mortality rate beyond 22 percent, or a hospital mortality rate above 5 percent, as causing unnecessary suffering and superfluous injury. (115) The mortality criterion is designed to encompass weapons that cause death in the field, as well as death following treatment in a medical facility. (116) The SIrUS Project does not consider that the level of medical expertise available, and the time it takes to evacuate an injured person from the field to a hospital, impacts the mortality rate. The ICRC accumulated its data on war wounded from field hospitals in less-developed countries. (117) However, it could not distinguish how many of these people were killed outright from war and perished before reaching a field hospital.

The mortality rate criterion depends on "well-equipped field hospitals," and, "well-recognized and proven treatment." (118) Unfortunately, neither is capable of being specified in a measurable way. Field hospital facilities, on which the mortality data are based, are not standardized. The availability of advanced military medical facilities will result in very different mortality rates from those suffered by a less well-equipped enemy. This may cause perverse implications with regard to a weapon's legality. In effect, the legitimacy of one side's weaponry would be tied to the medical expertise of its enemy.

Additionally, the medical data contains no information on the most critical period for survival--the time between field injury and hospital treatment. No time frames are specified when establishing the statistical basis for a legal judgment on the injury or mortality caused by weapons. The data could come from a single engagement, a battle, or an entire conflict. It is likely that very different results could emerge according to the time frame chosen. Nevertheless, SIrUS states, "the figures of 22 percent and 5 percent for field and hospital mortality respectively, are proposed as limits which are on the conservative side of the established baseline." (119)

Furthermore, in practice, it is virtually impossible to distinguish injuries and mortality caused by the inherent design-dependent effects of a weapon from those caused by the way it is used. No account is taken, for example, of weapons with high lethality, like sniper rifles, which are designed to be used in a highly discriminating way. Nor does the criterion contemplate a weapon's use across the spectrum of conflict where other wounding effects are likely to vary and impact mortality.

The ICRC percentages also do not account for other, historical factors. For example, the following casualty figures have been found for two World War II battles, one brief, one extended. The First Marine Raider Battalion landed on Tulagi on August 7, 1942, where it fought a two-day pitched battle against Japanese Special Landing Forces. (120) The Marines suffered thirty-eight killed and fifty-five wounded. (121) This represents a fatality rate of 37 percent. Of the Japanese force of approximately 350 men, all but three were killed--a near-100 percent fatality rate for the enemy force. (122)

In two parts of the New Guinea campaign (July 1942 to January 1943), the forces involved suffered the following casualties:

New Guinea (July 1942 to January 1943) (123)

Force          Wounded   Killed  % Killed to Wounded

United States   2,172     671           23.6
Australian       347      279           44.56
Japanese        3,000 *  12,000         79.92

* estimated sick and wounded

The high Japanese fatality rate may be attributed, in part, to the World War II Japanese philosophy of gyokusai--no surrender. It also may be attributed to the fact that jungle warfare involved battles at close range, which traditionally increase the percentage of fatalities vis-a-vis wounded in action. (124) Percentages of killed in action also are higher for forces engaged in offensive, rather than defensive, operations. (125) Thus, the SIrUS criterion does not account for many common variables found in combat situations.

This SIrUS criterion also assumes that the wounding mechanism causing death can be determined. This will not always be the case. Often, casualties will have so many wounds inflicted by multiple means--artillery and/or mortar fire, small arms, land mines, Claymores, and/or hand grenades--that it is impossible to determine the cause of death. (126) The cause of injury or death is often not ascertained or recorded. Understandably, medical personnel are more interested in treating the wound than being precise about the wounding mechanism. Also, in the interests of treatment, much of the wound data reports the location of the wound rather than the wounding mechanism. Not surprisingly, the greatest percentages of fatalities are in persons struck in the head or thorax. (127) This is the opposite of Coupland's experience in ICRC field hospitals where most patients were victims of antipersonnel landmines who suffered injury to the lower extremities. (128)

Because victims usually suffered multiple wounds, the leading fatality producing mechanism in World War II was the machinegun. (129) Even so, the cause of death cannot always be determined due to multiple wounds. This highlights another flaw in the SIrUS criteria--it fails to account for the synergistic effect of combined arms employment on the battlefield. It erroneously assumes that each soldier will be injured or killed by only one type of weapon. The law of war entitles a military commander to bring maximum power to bear on an enemy force. A major flaw in the SIrUS criteria is its ignorance, or intentional disregard, of this fact.

3. Criterion 6--Wound Classification

Criterion 6 involves any Grade-3 wound as measured by the Red Cross wound classification system. This criterion defines any weapon as unlawful, which, without targeting a particular part of the body, simply inflicts large wounds. (131) SIrUS states that conventional weapons produce less than 10 percent Grade 3 wounds, and that "this figure would be exceeded by any missile or wave form which carried much more energy and which foreseeably deposited this energy in the human body over a short track." (132)

An initial problem with this criterion is Coupland's use of "energy deposit," which has been challenged by leading experts on wound ballistics. As one expert has commented, "Any attempt to derive the effect of bullet impact in tissue using energy relationships is ill advised and wrong because the problem cannot be analyzed that way and only someone without the requisite technical background would try." (133) But Coupland and the ICRC used "energy deposits" anyway, exposing another flaw in their failure to submit SIrUS to peer review prior to publication.

Another problem with the wound classification scheme is that it fails to consider the relevant aspects of normal or intended weapon use. Under this criterion, exploding bullets and dum-dum bullets would be illegal.(134) However, any number of other legal weapons could also be deemed illegal or legal without considering whether the wound was produced within or outside of the weapon's intended use. Wounds vary according to the distance from which the weapon is fired. For example, .50 caliber weapons historically have been employed for anti-materiel and anti-personnel purposes. The heavy projectile weight and velocity enables it to engage targets up to 4,000 yards away. (135) An enemy soldier struck by a .50 caliber projectile at 150 yards would suffer a substantially more severe wound than one struck at 1,500 yards. Medically speaking, it would be easy to distinguish which soldier was the more severely wounded. However, the severity of the wound says nothing about the weapon's intended use.

Additionally, the analyses of wounds, especially bullet wounds, is complex. The size of the wound in and of itself may not be a good indicator of the scale of suffering inflicted or the probability of lethality. The effect of a wound caused by bullets entering the body will vary according to the elasticity of the tissue damaged. (136) Moreover, the wounding effect of any projectile will depend on where and what it hits in the body. Although SIrUS admits some lawful weapons can produce greater than Grade 3 wounds, (137) it doesn't seem to fully appreciate the arbitrary manner in which this particular criterion could be used. Weapon-specific conventions, those conventions that specifically address a given weapon or weapon system, would avoid this pitfall. Medical experts participating in the second ICRC experts meeting at Jongny sur Vevey identified an error in Coupland's characterization of Class 2 and Class 3 wounds. (138) While the error was acknowledged in the ICRC meeting report, it was not corrected. (139 )

4. Criteria 7--Absence of Recognized or Proven Treatment

This criterion states that a weapon causes unnecessary suffering or superfluous injury when it produces an injury for which there is no well-recognized or proven treatment. (140) It contemplates legality based on a race between weapons technology and medical technology. The criterion does not, however, specify a baseline for medical facilities--that is whether a developed or under-developed nation's baseline for medical facilities, is used. As mentioned in criterion 5's analysis, regardless of which baseline is ultimately selected, it could be used by one party to seek a perverse advantage. Medical and legal experts attending the Jongny sur Vevey meeting challenged this criterion because no data could be produced by the SIrUS Project to substantiate it. (141)

B. Overarching SIrUS Project Critique

SIrUS proponents believe conventional weapons are an acceptable baseline (not producing any of the criterion above unless used unlawfully). After excluding certain lawful conventional weapons, SIrUS boldly claims, "Any other foreseeable effects of weapons would therefore constitute superfluous injury or unnecessary suffering." (142) The criteria are limited to design-dependent weapons. Thus, at the heart of SIrUS is the proposition that the health effects of a weapon should be considered before, if not instead of, its nature, type or technology. (143)

SIrUS acknowledges this view is a reversal of current thinking. (144) Accordingly, SIrUS remarks that in cases such as the dum-dum bullet and blinding laser weapon, it was the technology (intent of the bullet and laser) that was banned and not the effects on the human being. It further argues, "Bullets causing large wounds should have been prohibited in 1899; intentional blinding as a method of warfare should have been prohibited in 1995." (145)

This bold assertion highlights a fundamental flaw with the Project--it claims that it knows what weapons should be prohibited better than governments do. Governments declined to prohibit "large wounds" and blinding as such. Following debate and full consideration, they determined such prohibitions were impractical. (146) Governments, not the ICRC, bear the responsibility for self-defense and maintaining world order, and governments, not the ICRC, have the responsibility for determining what weapons are lawful. (147) The prohibition of dum-dum bullets and blinding lasers weapons exposes a fundamental defect in this part of international law. (148) SIrUS offers itself as the objective fix to this so-called defect.

At first blush, and especially to those inexperienced in these matters, the ICRC's SIrUS Project, its criteria and arguments, seem credible. However, upon closer examination, it is clear that the SIrUS Project's foundation is based on flawed, inaccurate, and limited data. The criteria that flow from that flawed data could, if implemented, lead to perverse results. By and large, the Project is an unrealistic approach to determine which weapons cause unnecessary suffering or superfluous injury.

First and foremost, the ICRC's SIrUS Project does not account for customary international law principles and treaty-based laws regarding unnecessary suffering and superfluous injury determinations. It overly emphasizes unnecessary suffering and superfluous injury to the near exclusion of military necessity, and the logical point that, in war, suffering results from the lawful application of military force. The SIrUS Project, at best, fails to understand, or at worst, chooses to ignore, the other side of the unnecessary suffering or superfluous injury balancing equation. (149)

By omitting the military necessity principle from the balancing test, it fails to consider, for example, that bullets not intended to cause large wounds may do so, even when lawfully used. Also, the military necessity to use a particular weapon may exceed the SIrUS criteria, but save many lives in the process. The SIrUS Project probably intended to render as many weapons illegal as possible by effectively turning a blind eye to the military necessity principle. But, in doing so, it undermines its own credibility because it is acting in a manner wholly inconsistent with the customary practices of nations.

Additionally, the SIrUS Project's entire foundation of health-based criteria depends upon the ICRC's wound database. The database is solely based on information from field hospitals in Third World Countries.150 The casualty figures are primarily, if not exclusively, based on treatment of wounds in domestic disturbances or civil wars in the least developed of less-developed nations. (151) These wounds do not always reflect the multiple-source injuries found on the modem battlefield. Of the 26,636 casualties in its data bank, Coupland admitted that only one was documented as being wounded by more than one means. (152) This is hardly a reflection of modem warfare. Accordingly, the database fails to reflect either the wounds from actual warfare or the employment of modem medical facilities in a conflict.

The ICRC casualties and wound criteria do not account for the synergistic effect of combined arms employment on the modem battlefield. The United States Army's leading expert on this issue, Mr. W. Hays Parks, argues: "[The ICRC data] is basically talking about a gunfight that is going on in some third-world country between some civilians, which has nothing to do with how the military uses it weapons on the battlefield. In the SIrUS figures, when you get the 26,000, you don't know how many actually died." (153) He further notes that, without a valid rate of killed in action, it is impossible to know the true effect of a particular weapon. (154) Military, medical and legal experts attending the ICRC-hosted meeting at Jongy sur Vevey also found the wound database insufficiently valid and too limited to be credible. (155)

Finally, as mentioned previously, the ICRC is a private non-governmental organization located in a neutral country. Its mandate comes from governments, which have repeatedly declined to give it what it wants with respect to weapons issues. Its expertise is not in the area of weapons employment and warfighting, yet it continues to sponsor the SIrUS Project. To further its one-dimensional view of injury and suffering, the SIrUS Project ignores or omits all other relevant factors applicable to the determination of the lawfulness of weapons that are not of a medical nature. (156) The following proposal is a way in which the ICRC and its SIrUS Project might realistically, and positively, reduce unnecessary suffering or superfluous injury in future conflicts.

IV. PROPOSAL: AN ICRC SHIFT IN FOCUS

In May 1999, the ICRC hosted the first of two meetings of medical, legal, and military experts to comment on the SIrUS Project. (157) Although some medical associations had endorsed the SIrUS Project, (158) the invited experts did not. Thus, SIrUS remains a highly controversial undertaking that is strenuously opposed by many governments, international law scholars, and other legal and medical professionals in the international community. (159) The invited experts challenged the Project's underlying assumption that the "twentieth century has seen enormous human suffering caused by [unlawful] weapons." (160) The experts offered that the real problem is not unlawful weaponry, but the misuse of lawful weapons as witnessed in Cambodia, Rwanda, Kosovo, East Timor, Sierra Leone, and other third world nations. (161) Moreover, several experts agreed, including one from the United States, that the problem is too few parties to Protocol I, which requires a formal weapons review program, (162) are meeting that obligation . (163) As previously stated, of the 154 parties to Protocol I, less than ten were known to have complied with this obligation. The ICRC argues that SIrUS would give states with limited resources a set of objective criteria to help meet this requirement. (164)

The ICRC's response places the cart before the horse. Governments not complying with the mandate should be assisted and encouraged to establish a weapons review program based on law of war principles before exposure to the SIrUS Project. Otherwise, many countries, especially the underdeveloped ones, may be misled. These governments could mistakenly believe that the SIrUS criteria represent the current law of war standards. One expert summed it up best noting that Sweden has had a weapons review program since 1972--she saw no need for the SIrUS criteria. (165) Several other countries agreed and stated that the ICRC's weapon effort is a misplaced priority. (166)

The ICRC made cosmetic revisions to the SIrUS Project following its first experts meeting. At its second experts meeting, Coupland acknowledged that SIrUS remained fundamentally unchanged. (167) Consequently, it remains fundamentally flawed. Many nations, including the United States, Germany, Sweden, Canada, Denmark, and the United Kingdom--all traditional supporters of the ICRC, and among its largest contributors--cannot support the Project in its current unrealistic format for assistance in weapons reviews. (168) However, some nations note the Project could potentially provide useful information to the medical community for treatment of war wounds in general. (169) Accordingly, in order to address these concerns, the ICRC should shift the focus of its efforts to promoting implementation of weapons review.

The ICRC shift should start with education and strong encouragement to comply with the weapons review mandate of Article 36, Protocol 1. It should also offer a weapons review template for countries to model. In this light, the United States' weapons program now will be examined. It will be proposed as the model for nations who do not now comply with Article 36 to implement their own weapons review procedures.

A. The United States Weapons Review Program

Based upon lessons learned from our experience in the Vietnam War, the Department of Defense (DoD) promulgated its first formal directive on training and other implementation of its law of war responsibilities. (170) At the same time, it promulgated its first instruction implementing the weapons review program. (171) That instruction was further implemented through separate regulations in each of the three military departments. (172) Experience showed that while many weapons were receiving the required legal review, a "stand alone" directive did not ensure that all program managers or acquisition commands were aware of the requirement. (173) Consequently, in 1996, the requirement was incorporated into the DoD Acquisition Directive. (174) Also in 1996, the DoD instituted its program for the development of non-lethal (or "less lethal") weapons. (175) The procedural and substantive components of the weapons program will now be examined.

1. The Procedural Aspects of United States Weapons Review Program

In order to understand the procedural aspects of the weapons review program, a brief explanation of the United States' weapons acquisition process is necessary. (176) The U.S. military acquires a weapon or munition to meet an expressed, detailed, stated requirement. (177) Comprehensive testing and evaluation to ensure that the weapon or munition meets performance specifications set forth in the operational requirement precede acquisition. (178) This testing, evaluation, and acquisition is conducted under the supervision of a program manager for the object in question. A program manager is an employee of the department or command responsible for acquiring the weapon or munitions. (179)

It is the program manager's responsibility to comply with DoD directives. (180) Failure to comply can result in termination of the particular program, (181) which would certainly adversely impact the manager's job performance evaluation. Hence, there is an incentive to comply and cooperate with defense acquisition requirements, including the requirement for a legal review. Likewise, if a private defense contractor wishes to sell his product to the military, it is in his or her interest to cooperate with the program manager and the office conducting the legal review of the weapon.

Simply stated, if there is a requirement for a weapon or munition, and a defense contractor wishes to sell a product to the DoD to meet the requirement, a legal review must be conducted before a purchase is approved and the contractor is paid. The remaining sections will describe who conducts the weapons review, when the review takes place, and the subject of the review.

a. Who Conducts the Weapons Review?

The Judge Advocate General of the military department with primary responsibility for weapon or munition acquisition is responsible for conducting the legal review. (182) If more than one military department is acquiring the weapon or munition, the review is prepared by the Judge Advocate General for the military department with primary responsibility for its acquisition. (183) It must then be coordinated with its relevant counterpart offices. (184) For example, a legal review for a weapon or munition that may raise a significant question of law must be coordinated with each of the Offices of the Judge Advocates General, the General Counsel, Department of Defense and, if appropriate, with the Office of the Legal Advisor, Department of State. (185)

The legal review must be accomplished by an individual with the proper qualifications. He or she must have a thorough working knowledge of the law of war and arms control, and a substantial working knowledge of weapons and military doctrine (this includes an equally substantial knowledge of military history). (186) The legal review of a new weapon or munition cannot be conducted in a vacuum. The individual must also have a working relationship with other experts, such as engineering and medical experts, who can assist in collecting relevant information for preparation of the legal review. (187)

Not all reviews require the advice of outside experts. Some examples include reviews of an improved artillery system (188) or an anti tank system. (189) Neither weapon system offers any unique law of war questions. However, where a weapon or munition does pose unique questions, it may be necessary to consult experts in other fields of endeavor. For example, the legal review of the United States Army's new lead-free 5.56mm M855 cartridge (NATO SS109) required meetings with environmental experts, wound ballistics experts, and medical experts, to determine the possible toxicity of a tungstencored projectile. (190)

It is important that the information in the review be complete. For example, documentation for a less-lethal version of the M118 Claymore, which used rubber projectiles, initially did not indicate what steps had been taken to ensure that the projectiles were detectable by x-ray. If they were not detectable, the weapon would violate Protocol I of the 1980 United Nations Conventional Weapons Convention (prohibiting non-detectable fragments). (191) A discussion with the program manager confirmed that the projectiles were coated with five percent barium sulfate, thus complying with Protocol I. More importantly, a weapon or munition acquisition can be delayed indefinitely, or cancelled, if the information provided to conduct the legal review is not deemed sufficient for an adequate review. (192) The bottom line is that a weapon or munition cannot be acquired unless and until it receives a favorable legal review.

b. When the Weapon Review Takes Place

For obvious reasons, the weapons review must take place early in the acquisition process. The DoD acquisition system contains "milestones." (193) These are "gates" in the acquisition process where a weapon or munition passes through research, development, testing, and evaluation before the decision is made to place a contract to purchase it. The legal review comes early in this milestone process to ensure compliance with law of war principles and to prevent waste of government resources. If substantive changes in the. weapon or munition occur as it passes through this process, a follow-on legal review is accomplished. (194)

c. What is Subject to a Weapons Review?

All weapons and weapons systems require review. Weapon platforms, however, are generally excluded from review. (195) Recognizing the role that new technologies may play in weapons or munitions development, the DoD directive encourages legal reviews of "new, advanced or emerging technologies that may lead to development of weapons or weapons systems." (196) This paper will now turn to the substantive aspects of the weapons review.

2. The Substantive Aspects of the United States Weapon Review Program

The substantive aspects of the review program relate directly to the law of war treaties to which the United States is a party. Customary law principles are also part of the substantive evaluation. The overarching treaty provision applicable to the United States is found in Article 23(e) of the Annex to the Hague Convention IV of 1907--"weapons that are calculated to cause unnecessary suffering." (197) For parties to Protocol I, the 1907 Hague IV norm is stated in Article 35. Article 35 updated, but otherwise did not amend, the requirement stated in Article 23(e) of the 1907 Hague Convention IV. (198) Each weapons review contains an analysis of the current legal standard. The review, including the discussion of the current standard, is the result of considerable research and experience, and has been coordinated with legal experts in each of the other military departments, the DoD General Counsel, the Office of the Legal Adviser, Department of State, and counterpart offices in other governments. (199)

The substantive aspects of a weapons review include detailed analysis of three fundamental areas:

- the weapon's mission and military advantage and, if relevant, its accuracy;

- the weapon's nature (taking into consideration of the prohibition contained in Article 23(e) of the Annex to Hague Convention IV of 1907, to include medical, scientific, and environmental effects); and

- the weapon's applicability (or non-applicability) to specific international law (law of war or arms control) rules or prohibitions. (200)

During the substantive portion of the weapons review process, each area listed above is broken down into additional factors and subfactors for evaluation. These subfactors primarily relate to the injury the weapon causes and its intended uses. This section will present and discuss these additional relevant factors. (201)

a. The Weapon's Military Mission and Advantage

The specific aspects of the weapon under review are examined during the acquisition process. The substantive part of a weapons review requires a determination that the weapon is legal under the international law standard of "superfluous injury or unnecessary suffering." This determination requires a balancing of the weapon's military necessity against the injury it produces. This balance is subjective in nature and complex. That is why the individual responsible for conducting the legal review must be an expert in international law obligations, and seek assistance from an array of multi-disciplinary experts, when necessary. The relevant factors considered and balanced under the military necessity standard include: the degree of injury the weapon may cause, the weapon's intended use, the threat posed by the potential enemy, and the weapon's enhanced utility. (202)

In the weapon review, the weapon's intended use is balanced against the military advantage afforded and the injury caused. This factor includes specific findings on the intended use of the weapon, whether it serves as a non-lethal alternative to other wounding mechanisms, and whether the injury caused by the weapon is incidental or collateral to its intended use. (203)

Balancing injury against military necessity to determine a weapon's legality under international law requires an analysis of the threat posed by the potential enemy. A specific threat may justify producing a specific type of weapon or munition, consistent with the law of war and arms control obligations of the United States. The nature of the threat opposed is key to the analysis. (204)

Consideration is given to the enhanced utility of a particular weapon--whether the weapon provides a unique or enhanced feature unavailable in other weapons. The enhanced utility, if any, is balanced against the weapon's military necessity and injury equation. (205)

The weapons review must consider the international law principle of distinction. Essentially, this is the user's obligation to consider a weapon's accuracy. For example, an artillery shell offering increased range but diminished accuracy as compared to existing, lawful artillery shells, would raise legal issues regarding discrimination. (206)

b. Degree of Injury the Weapon May Cause

To determine whether a weapon's military advantage outweighs the injury it causes, the weapons review assesses the degree of injury it produces. The degree of injury includes the trauma a weapon will cause, how that trauma measures against other weapons that perform similarly, and a determination of whether the weapon has been enhanced from a previous legal weapon to heighten its lethality. (207) It is within this section of the weapons review that the SIrUS Project's information, if verifiable and credible, could greatly assist nations using this or a similar model to conduct their weapons reviews.

c. Specific International Law Prohibitions

A final factor considered in a weapons review is whether the weapon is already prohibited by international law. This determination includes treaty-based limitations on the use of a particular weapon, whether contained in the law of war or arms control agreements. (208)

In sum, the United States weapons review program complies with all international law requirements. It specifically considers the prohibition of weapons calculated to cause "unnecessary suffering and superfluous injury." In its present, flawed form, the ICRC's SIrUS Project contributes nothing to the weapons review process. It would do well to study and replicate the United States' weapons review program for dissemination to parties to Additional Protocol I, rather than trying to "re-invent the wheel" with a program which has dubious credentials. The United States has offered to assist the ICRC in this endeavor, (209) even briefing its weapons review program at the Jongny sur Vevey experts meeting in January 2001, at the invitation of the ICRC. It remains to be seen whether the ICRC will take advantage this offer.

The SIrUS Project could be useful to the medical community if it redirects its focus to developing medical protocols for treating injuries. The ICRC's primary resources should be spent helping other nations implement weapons review programs (as well as other portions of the codified law of war, most particularly the four 1949 Geneva Conventions). This shift in focus would be more aligned with the ICRC's claimed role of "guardians" of the Geneva Conventions and the mandate provided by governments financing its operations.

V. WHOSE BAILIWICK IS IT ANYWAY?

Each sovereign national government is independently responsible for meeting its international humanitarian law obligations. The ICRC role, as a non-governmental organization, is to assist and encourage nations to meet these obligations. (210) The ICRC has always had a close and special relationship with international humanitarian law. (211) It reported on the problems it has encountered, and on that basis, has made practical proposals for the improvement of international humanitarian law. (212) However, regarding its sponsorship of the SIrUS Project, the ICRC is outside both its mandate and its expertise.

The SIrUS Project's goal is a treaty-regulated objective "health-based approach" to determine which weapons cause "unnecessary suffering and superfluous injury." The Project seeks to ban certain weapons categorically based upon criteria extracted from the ICRC field hospital database. The constraints imposed on collection of the data have made the data impossible to validate. Consequently, the data underlying the criteria is unreliable and ill-suited for such an undertaking.

Military, medical and legal experts who attended each of the ICRC's expert meetings were uniformly critical of the ICRC database and the "health-based" approach to determining the legality of weapons. At the second expert meeting, British Colonel Alen Hawley pointedly commented, "War is a social problem, not a health problem." (213) Even if the data was credible, Article 36 of Protocol I puts the obligation on States to determine whether a weapon, means or method of warfare, would in some or all circumstances, be prohibited by the Protocols or by any other rule of international law applicable to the party. (214)

Article 35(2) does not define "unnecessary suffering" or "superfluous injury." (215) Article 36 of Protocol I does not regulate what criteria or norms should be applied when reviewing new weapons. (216) However, this does not give the ICRC a mandate to create binding definitions or establish binding criteria. The ICRC does not have the international mandate to create those norms because sovereign nations understand that the ICRC, as an institution, lacks the expertise for such an undertaking. States Parties have neither asked nor provided the ICRC with the mandate to undertake the SIrUS Project.

Although the SIrUS Project presupposes that "unnecessary suffering and superfluous injury" are absolute terms capable of measurement, it is implicit in Protocol I that these terms are relative, recognizing that some degree of suffering is an unavoidable part of war. The prohibition on "unnecessary suffering" constitutes the acknowledgment that, in war, there is such a thing as "necessary suffering" on the part of combatants, including death. British Colonel Hawley noted this by identifying "the soldier's liability:" to sometimes use lawful violence to take life and, on occasion, to be killed. (217) The law of war prohibits neither. Moreover, "superfluous" and "unnecessary" can only be reasonably interpreted in a specific military context. Whether a weapon is not "of a nature to cause superfluous injury or unnecessary suffering" depends upon careful review and the exercise of judgment by individuals with the requisite knowledge and expertise, appointed by their governments for this task.

As guardians of the law of Geneva, the ICRC has a mandate to assist and encourage governments to comply with their law of armed conflict obligations. Most nations are not implementing the weapons review requirement contained in Article 36, Protocol I. (218) The ICRC could make a significant contribution in this area. Instead, it is risking the erosion of central concepts of international humanitarian law with its flawed SIrUS Project.

Although well intentioned, the ICRC and the SIrUS Project appear to be trying to solve a problem that does not exist. There is no evidence showing a proliferation of illegal weapons. The contrary is true. (219) The international community meets regularly--at least every five years, to consider whether there is a basis to ban or regulate certain conventional weapons. The ICRC is permitted to attend these meetings solely as an observer. (220) Only States Parties to the UNCCW may vote to create or amend protocols. Governments have opted for the UNCCW, and other specific conventions, because they work.

The real problem regarding "unnecessary suffering" is the illegal use of lawful weapons. (221) That is what the ICRC has seen and reported on in recent years. The result of such misuse of weapons in war is cause for concern; however, the problem is mainly caused by certain underdeveloped countries and a handful of rogue nations engaging in civil-type wars and choosing brutality over humanity. As horrible as they are, the gross cases of civilian murders in Angola, Bosnia, Sierra Leone, Kosovo, and East Timor have no relationship to the lawful use of lawful weapons by conventional military forces in international armed conflict. The best SIrUS can do at this stage of its development is provide some useful information concerning treatment of the wounded.

The issues relating to the use of weapons that cause superfluous injury and unnecessary suffering are of great importance. However, there is a significant risk that the SIrUS Project could gain support, particularly among those with the least to lose, without it ever demonstrating that its proposals are workable. Nations with long records of failure to implement or respect the law of war treaties to which they are party, undoubtedly would delight in using SIrUS' flawed criteria.

These nations could try to prevent a nation such as the United States, with its long record of respect for the law of war, from developing, acquiring, and using legitimate weapons with which it can fight and win. That would surely undermine the responsibility of States to review the legality of weapons, means and methods of warfare, set out in Article 36 of Protocol I. It introduces a potential element of international arbitration into determining the legality of a weapon. Rather than achieving a universal improvement in the way force would be applied, the likely effect of SIrUS would be to increase the disparity in behavior and application of legal constraints between states and military organizations that are conscientious about humanitarian concerns and those that are not.

In sum, it is not the ICRC's, or any NGO's duty or responsibility to determine what weapons are lawful under international humanitarian law. Nor is it the ICRC's responsibility to define what constitutes "unnecessary suffering or superfluous injury." Currently, both responsibilities rest squarely on sovereign nations. They should remain there unless and until these same nations indicate a willingness to give the ICRC a mandate.

VI. CONCLUSION

At the introductory section of this article questions were propounded. The answers are as follows:

(1) Should the determination of "unnecessary suffering or superfluous injury" be assessed solely with regard to so-called "objective health-based criteria" espoused by the SIrUS Project? Why SIrUS ?

- No, the determination of "unnecessary suffering or superfluous injury" should not be assessed solely with regard to the so-called objective health-based criteria espoused by SIrUS. SIrUS is unnecessary; it is a flawed solution to a non-existent problem.

(2) Is the problem developing weapons that may cause "superfluous injury or unnecessary suffering," or the illegal use of lawful weapons, as in Kuwait (by Iraq), Angola, the Balkans, Sierra Leone, East Timor, and elsewhere?

- The problem is the illegal use of lawful weapons.

(3) Is there a clearly identified problem of illegal use of weapons in international armed conflict? Or, is SIrUS an ICRC expression of frustration with the anarchy of post-Cold War collapse of governments (Somalia, the Balkans), ethnic violence (the Balkans, East Timor), and violence against civilians in less-developed nations' internal conflicts (Angola, Eritrea, and elsewhere)?

- There is no clearly identified problem of illegal use of weapons in international armed conflict, but rather an illegal use in internal conflicts in less developed nations. This ethnic violence and violence against civilians in less developed nations' internal conflicts is outside of the scope of the ICRC's mandate.

(4) Should weapons reviews continue to make "unnecessary suffering or superfluous injury" determinations according to objective principles of military necessity, distinction, proportionality, and humanity applied subjectively by sovereign nations?

- Yes, the unnecessary suffering or superfluous injury determination in weapons reviews should continue to be assessed in accordance with the objective principles of international humanitarian law applied in good faith by sovereign nations.

(5) Currently, the trend is for nations to come together at Weapons Conventions to outlaw specific weapons. They do not use objective criteria, and the vote to outlaw is by consensus. Is this effective?

- Yes, the current trend of nations coming together at Weapons Conventions to consider the prohibitions or restrictions on certain specific conventional weapons without objective criteria and with voting by consensus is effective.

(6) What is the best approach to fill the "unnecessary suffering or superfluous injury" vacuum left undefined by treaty and customary international law? Is a more stringent adherence to Protocol I-mandated weapons review programs (similar to that of the United States) a better approach than the implementation of the SIrUS Project?

- A more stringent adherence to Protocol I mandated weapons review programs similar to the United States is a better approach than international endorsement and implementation of the flawed SIrUS Project. Within the United States weapons reviews, (arguably the most transparent of those nations who conduct the reviews) unnecessary suffering is defined, and to date no issue from any source has critiqued or opposed it. (222)

(7) Whose bailiwick is it anyway? In other words, who should be responsible to determine whether a particular weapon causes "unnecessary suffering or superfluous injury," governments, NGOs, or the UN?

- It is the ultimate responsibility of sovereign nations to determine whether a particular weapon causes unnecessary suffering or superfluous injury, not NGO's like the ICRC, or the UN. (223)

(1.) The International Committee of the Red Cross (ICRC) is an impartial, neutral and independent organization whose exclusively humanitarian mission is to protect the lives and dignity of victims of war and internal violence and to provide them with assistance. It directs and coordinates the international relief activities conducted by the Movement in situations of conflict. It also endeavors to prevent suffering by promoting and strengthening humanitarian law and universal humanitarian principles. Established in 1863, the ICRC is at the origin of the International Red Cross and Red Crescent Movement

The ICRC--its mission role and mandate at http://www.icrc.org/icrceng.nsf (last visited Nov. 8, 2001) [hereinafter ICRC] (on file with the Air Force Law Review).

(2.) The word SIrUS is the Project's acronym for "superfluous injury or unnecessary suffering." The SIrUS Project is a novel attempt to define and quantify a law of war principle known as superfluous injury or unnecessary suffering. Its founder is Dr. Robin Coupland. The International Committee of the Red Cross (ICRC) supports the Project.

(3.) Unnecessary suffering or superfluous injury is a well established, yet generally undefined principle in the law of war. It seeks to limit the amount of suffering which may be lawfully inflicted on combatants. See The Hague Convention No. IV Respecting the Laws and Customs of War on Land, Oct. 18, 1907, art. 23 (e), 36 Stat. 2277 [hereinafter The Hague Convention No. IV] ("[I]t is especially forbidden to employ arms calculated to cause unnecessary suffering.") (emphasis added); 1977 First Protocol Additional to the Geneva Conventions, Dec. 12, 1977, art. 35(2), 16 I.L.M. 1391 [hereinafter Protocol I] reprinted in CLAUDE PILLOUD ET AL., COMMENTARY ON THE ADDITIONAL PROTOCOLS OF 8 JUNE 1977 TO THE GENEVA CONVENTIONS OF 12 AUGUST 1949, 389 (Yves Sandoz et al. eds., 1987) [hereinafter COMMENTARY ON PROTOCOL I] ("[I]t is prohibited to employ weapons, projectiles and materials and methods of warfare of a nature to cause superfluous injury or unnecessary suffering.") (emphasis added). See generally Henri Meyrowi tz, The Principle of Superfluous Injury or Unnecessary Suffering: From the Declaration of St. Petersburg of 1868 to Additional Protocol I of 1977, 299 INT'L REV RED CROSS 98, 102 (1994) [hereinafter Meyrowitz Article] (noting in the official French text, the language is "propres a causer des maux superflus.") When translated into in English in 1899, the text read as "of a nature to cause;" however, in the 1907 English text, it was translated as "calculated to cause." Id. The two phrases generally have been regarded as synonymous. Id.

(4.) ROBIN M. COUPLAND, INTERNATIONAL COMMITTEE OF THE RED CROSS, THE SIRUS PROJECT: TOWARDS A DETERMINATION OF WHICH WEAPONS CAUSE "SUPERFLUOUS INJURY OR UNNECESSARY SUFFERING" (November 10, 1997) [hereinafter COUPLAND., THE SIRUS PROJECT] (defining four medical effects common to weapons and establishing a standard criteria for evaluating weapons). The criteria purportedly serve as objective health-based determinations for defining "superfluous injury" and "unnecessary suffering" under international law. Id. at 7. As such a particular weapon would become illegal per se based upon the weapon's medical effects on human health under its criteria. Id. at 8. See also, INTERNATIONAL COMMITTEE OF THE RED CROSS, THE SIRUS PROJECT AND REVIEWING THE LEGALITY OF NEW WEAPONS, 2000 [hereinafter ICRC, THE SIRUS PROJECT] (only slightly revising, COUPLAND, THE SIRUS PROJECT, supra).

(5.) Note that the ICRC, THE SIRUS PROJECT, supra note 4, is a slight revision of COUPLAND, THE SIRUS PROJECT, and the latter remains the seminal work product. Interview with W. Hays Parks, Special Assistant to The Judge Advocate General of the Army in Rosslyn, Va. (Nov. 3, 2000) [hereinafter Parks Interview I]. Minor revisions were made to COUPLAND, THE SIRUS PROJECT, in accordance with a peer review of the Project that took place at a meeting of governmental, medical and legal experts in Geneva, Switzerland in May 1999. See INTERNATIONAL COMMITTEE OF THE RED CROSS, SUMMARY REPORT, EXPERT MEETING ON LEGAL REVIEWS OF WEAPONS AND THE SIRUS PROJECT 5 (2001) [hereinafter ICRC SIRUS 2001 SUMMARY REPORT]. The ICRC SIrUS Project is virtually the same SIrUS Project. At the second ICRC Meeting of Experts on SIrUS, held in Jongny sur Vevey, Switzerland, 29-31 January 2001, Dr. Coupland acknowledged that while some changes had been made to the SIrUS Project description following the May 1999 experts' meeting, its core concept remained unchanged. Id.; see also Memorandum, Office of the Judge Advocate General of the Army, International and Operational Law, to The Judge Advocate General of the Army, subject: International Committee of the Red Cross Expert Meeting on Legal Reviews of Weapons and the SIrUS Project, Jongny sur Vevey, Switzerland, 29-31 January 2001 at 2 (Feb. 5, 2001) [hereinafter Jongny sur Vevey Memorandum] (on file with author).

(6.) See generally U.S. DEP'T OF DEFENSE, DIR. 5100.77, DOD LAW OF WAR PROGRAM, para. 4.1 (Dec. 9, 1998) [hereinafter DOD DIR. 5100.77] (stating "it is DoD policy to ensure the law of war obligations of the United States are observed and enforced by the DOD Components"); U.S. DEP'T OF DEFENSE, INSTR. 5000.2, DEFENSE ACQUISITION para. 4.7.3.1.4 (Oct. 23, 2000) [hereinafter DOD INSTR. 5000.2] (appointing the general counsel and alternatively the service judge advocate general responsible for reviewing the legality of weapons under international law).

(7.) Protocol I, article 36, supra note 3, provides that "in the study, development, acquisition or adoption of a new weapon, means or method of warfare, a High Contracting Party is under an obligation to determine whether its employment would, in some or all other circumstances, be prohibited by this Protocol or by any other rule of international law applicable to the High Contracting Party."

(8.) NGOs are "[t]ransnational organizations of private citizens that maintain a consultative status with the Economic and Social Council of the United Nations. NGOs may be professional associations, foundations, multinational businesses or simply groups with a common interest in humanitarian assistance activities (development and relief)." U.S. DEP'T OF ARMY, FM 10020, MILITARY OPERATIONS IN LOW INTENSITY CONFLICT, 1-111 (05 Dec. 1990) at http://www.adtdl.army.mil/atdls.htm. The ICRC is an NGO.

(9.) Major Harold E. Harris, Modern Weapons and the Law of Land Warfare, 12 REVUE DE DROIT PENAL MILITAIRE ET DE DROIT DE LA GUERRE 9 (1973).

(10.) Id. While there is some evidence of the custom existing earlier, this was the first official action. Id.

(11.) Id. (citing J. Mallison The Laws of War and the Juridical Control of Weapons of Mass Destruction in General and Limited Wars, 36 GEO. WASH. L. REV. 306, 318 (1967)).

(12.) SIR RALPH PAYNE-GALLWEY, THE CROSSBOW 3-4, 46-48 (1958).

(13.) Harris, supra note 9, at 9 (citing C. FENWICK, INTERNATIONAL LAW 667 (4th ed. 1965)).

(14.) M. W. ROYCE, LA PROTECTION DES POPULATIONS CIVILES CONTRE LES BOMBARDMENTS 77 (1930) (Mr. Royce, a respected international scholar at the time, noted at a meeting of experts hosted by the ICRC in 1930 that weapons had not, to date, been effectively restricted).

(15.) HUGO GROTIUS, THE RIGHTS OF WAR AND PEACE: INCLUDING THE LAW OF NATURE AND NATIONS 364 (A.C. Campbell trans., 1979).

(16.) HILAIRE MCCOUBREY & NIGEL D. WHITE, INTERNATIONAL LAW AND ARMED CONFLICT 215 (1992).

(17.) Id.

(18.) Id.

(19.) Instructions for the Government of Armies of the United States in the Field, General Order No. 100, 24 April 1863, [hereinafter The Lieber Code], THE LAWS OF ARMED CONFLICTS. A COLLECTION OF CONVENTIONS, RESOLUTIONS AND OTHER DOCUMENTS 3 (Dietrich Schindler & Jiri Toman eds., 1988) [hereinafter Schindler & Toman].

(20.) DECLARATION RENOUNCING THE USE, IN TIME OF WAR, OF EXPLOSIVE PROJECTILES UNDER 400 GRAMMES WEIGHT, Dec. 11, 1868, (1907 Supp.) 1 AM. 3. INT'L L. 95 [hereinafter The St. Petersburg Declaration of 1868]. The St. Petersburg Declaration of 1868 is the first formal agreement prohibiting the use of certain weapons in war. Schindler & Toman, supra note 19, at 101. It had its origin in the 1863 invention by Russian military authorities of a bullet which exploded on contact with a hard substance and whose primary purpose was to blow up ammunition wagons. Id. In 1867, the bullet was modified so as to explode on contact with a soft substance. Id. The Russian Government, unwilling to use the bullet itself or to allow another country to take advantage of it, suggested that the use of the bullet be prohibited by international agreement. Id. This Declaration was the first multilateral statement of what has become the customary rule that the use of arms, projectiles and material of a nature to cause unnecessary sufferi ng is prohibited. Id. The original parties to the Declaration were Austria-Hungary, Bavaria, Belgium, Denmark, France, Great Britain, Greece, Italy, Netherlands, Portugal, Prussia, and North German Confederation, Russia, Persia, Sweden, Norway, Switzerland, Turkey, and Wurtemburg. Id. at 103. A recent Army Judge Advocate General legal review, while acknowledging the St. Petersburg Declaration to be the origin of the prohibition on weapons calculated to cause unnecessary suffering, determ:ined (through extensive historical review of the practice of nations) that the 400-gram limit on explosive or incendiary munitions was obsolete unless the projectiles are exclusively anti-personnel in character. See Memorandum, Office of The Judge Advocate General of the Army, International and Operational Law Division, to US Army Armament Research, Development and Engineering Center, subject: Legal Review, Mk 211, MOD O, Cal. .50 Multipurpose Projectile (14 Jan. 2000) [hereinafter Mk 211 Review 14 Jan. 2000] (on file with au thor) (noting the ICRC representatives indicated their agreement with the earlier memorandum's analysis (the original version of the same review dated 19 Feb 1998 was coordinated with the other military services, DOD General Counsel, and the Office of the Legal Adviser, Department of State) and conclusion regarding the obsolescence of the 400-gram limitation). The subject munition is an armor-piercing incendiary projectile weighing 43.6 grams that is in use by the U.S. Army, Navy and Marine Corps, and more than a dozen other nations. Id.

(21) The Lieber Code, supra note 19, arts. 14, 15. Article 14 states "[m]ilitary necessity, as understood by modern civilized nations, consists in the necessity of those measures which are indispensable for securing the ends of the war, and which are lawful according to modem law and usages of war." Further, article 15 states:

[m]ilitary necessity admits of all direct destruction of life or limb of armed enemies, and of other persons whose destruction is incidentally unavoidable in the armed contests of the war; it allows of the capturing of every armed enemy, and every enemy of importance to the hostile government, or peculiar danger to the captor; it allows of all destruction of property, and obstruction of the ways and channels of traffic, travel, or communications, and of all withholding of sustenance or means of life from the enemy; of the appropriation of whatever an enemy's country affords necessary for the sustenance and safety of the army, and of such deception as does not involve the breaking of good faith positively pledged, regarding agreements entered into during the war, or supposed by the modern law of war to exist. Men who take up arms against one another in public war do not cease on this account to be moral beings, responsible to one another and to God.

(22.) Id. Art. 16 states:

[m]ilitary necessity does not admit of cruelty--that is, the infliction of suffering for the sake of suffering or revenge, nor of maiming or wounding except in fight, nor torture to extort confessions." It does not admit to the use of poison in any way, nor of the wanton devastation of a district. It admits of deception, but disclaims acts of perfidy; and in general military necessity does not include any act of hostility which makes the return to peace unnecessarily difficult.

(23.) St. Petersburg Declaration of 1868, supra note 20, at para. 1 states:

The progress of civilization should have the effect of alleviating as much as possible the calamities of war; that the only legitimate object which states should endeavor to accomplish during war is to weaken the military forces of the enemy; that for this purpose it is sufficient to disable the greatest possible number of men; that this object would be exceeded by employment of such arms which would uselessly aggravate the suffering of disabled men or render their death inevitable; that the employment of such arms would be contrary to the laws of humanity.

(24.) Schindler & Toman, supra note 19, at 25-26.

(25.) Id.

(26.) Id. at 25.

(27.) Id.

(28.) Id. at 26.

(29.) Fritz Kalshoven, Arms, Armaments and International Law, 191 HAGUE RECUEIL DES COURS 213 (1985).

(30.) Schindler and Toman, supra note 19, at 201. This prohibition was temporary. Id. It was renewed in The Hague Declaration XIV of 18 October 1907 until the conclusion of the Third Hague Peace Conference. Id. That conference was not held because of the commencement of World War (WW) I, which rendered the declaration obsolete. Id.; see also Donald Cameron Watt, Restraints on War in the Air before 1945, in RESTRAINTS ON WAR 60-61 (Michael Howard, ed., 1979); W. Hays Parks, Air War and the Law of War, 32 A.F.L. REV. 1 (1990).

(31.) Schindler and Toman, supra note 19, at 105. This declaration was not entirely successful, as each side utilized chemical weapons in WW I following their introduction by Germany. Id. Its failure led to the 1925 Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare. Id.

(32.) Id. at 109. The term "dum-dum" is derived from a British manufacture of the Mk. IV .303 rifle bullet at the Dum-Dum Arsenal near Calcutta, India. Id. The Mk. IV, a hollow-point projectile, was the basis for the 1899 prohibition on hollow point or expanding bullets. Id.; see also, Memorandum, Office of the Judge Advocate General of the Army, International and Operational Law, to The Army Judge Advocate General, subject: Legal Review, 5.56mm, 77-grain Sierra MatchKing [TM] Bullet (19 May 2000) at 4-5 [hereinafter MatchKing Review] (on file with author).

(33.) Kalshoven, supra note 29, at 216.

(34.) See Schindler and Toman, supra note 19, at 63; United States v. Krupp et al., IX INT'L MIL. TRIB. 1340 (1948) [hereinafter Krupp]. (noting that the Hague IV Convention is a slightly revised version of the 1899 Hague Convention II).

(35.) Hague Convention No. IV, supra note 3, art. 22.

(36.) Id. Art. 23 states:

In addition to the prohibitions provided by special Conventions, it is especially forbidden to

(a) to employ poison or poisoned weapons;

(b) to kill or wound treacherously individuals belonging to the hostile nation or army;

(c) to kill or wound an enemy who, having laid down arms, or having no longer means of defense, has surrendered at discretion;

(d) to declare that no quarter will be given;

(e) to employ arms, projectiles or material calculated to cause unnecessary suffering;

(f) to make improper use of a flag of truce, of the national flag or of the military insignia and uniform of the enemy, as well as the distinctive badges of the Geneva Convention;

(g) to destroy or seize the enemy's property, unless such destruction or seizure imperatively demanded by the necessities of war;

(h) to declare abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party.

A belligerent is likewise forbidden to compel the nationals of the hostile party to take part in the operations of war directed at their own country, even if they were in the belligerent's service before the commencement of the war.

(37.) Id.

(38.) Krupp, supra note 34.

(39.) Hague Convention IV, supra note 3, preamble. Martens was the name of the Russian negotiator at the Hague Conventions.

(40.) Id. (mentioning for the first time public opinion as a means by which to evaluate unnecessary suffering in warfare).

(41.) See generally Geneva Conventions for the Amelioration of the Wounded and Sick in the Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31 [hereinafter GWS]; Geneva Conventions for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of the Armed Forces at Sea,

Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 [hereinafter GWS Sea]; Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.N.T.S. 3316, 75 U.N.T.S. 135 [hereinafter GPW]; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter GC].

(42.) Protocol I, supra note 3, art. 35. Preceding the above quoted language, section 2 of article 35 includes a phrase similar to the Hague Convention No. IV, article 22, stating "in any armed conflict, the right of the Parties to the conflict to choose methods or means of war is not unlimited." The Hague Convention No. IV expressed the same statement in terms of belligerents but Protocol I expanded the definition and includes parties in any armed conflict. This reflects the Protocol's focus to obtain law of war protections in conflicts extending beyond traditional international armed conflict. The United States has rejected this politicization of the law of war. See Message of the President of the United States Transmitting Protocol II Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of Noninternational Armed Conflicts, Concluded at Geneva on June 10, 1977, 100th Congress, 1st Session (1987), reprinted in 26 I.L.M. 561. Additional Protocol II of 1977 is conc erned with internal armed conflicts, improving upon Article 3 common to the 1949 Geneva Conventions. It made no change on the law respecting the legality of weapons.

(43.) COMMENTARY ON PROTOCOL I, supra note 3. Regarding art. 36, this obligation was defined by the Rapporteur of Committee III as follows:

The determination of legality required of States by this article is not intended to create a subjective standard. Determination by any State that the employment of a weapon is prohibited or permitted is not binding internationally, but is hoped that the obligation to make such determinations will ensure that means or methods of warfare will not be adopted without the issue of legality being explored with care. It should also be noted that the article is intended to require States to analyze whether the employment of a weapon for its normal or expected use would be prohibited under some or all circumstances. A State is not required to foresee or analyze all possible misuses of a weapon, for almost any weapon can be misused in ways that would be prohibited.

Id.

(44.) U.S. DEP'T OF DEFENSE, DIR. 5100.77, DOD LAW OF WAR PROGRAM, para. 4.1 (9 Dec. 1979) ("[I]t is DoD policy to ensure the law of war obligations of the United States are observed and enforced by the DoD Components") (replaced by DOD DIR. 5100.77, supra note 6, which came out in 1998). The 1979 Directive codified the U.S. weapons practice, which predated Protocol I.

(45.) MatchKing Review, supra note 32, at 2.

(46.) Memorandum, Office of the Judge Advocate General of the Army, International and Operational Law, to The Judge Advocate General of the Army, Subject: International Committee of the Red Cross (ICRC) Meeting of Experts on ICRC SIrUS Project, Geneva, 1011 May 1999; Trip Report, (19 May 1999) [hereinafter Trip Report 19 May 1999] (on file with author) (noting that of the 156 Contracting Parties to Protocol I, only 10 have established a weapons review program). The United States has implemented a weapons review program, which will is discussed infra Part III.A.). At the time of preparation of this article, the number of States Parties to Protocol I had increased to 158. The number of Parties with programs to implement Article 36 remains at ten. Interview with W. Hays Parks, Special Assistant to The Judge Advocate General of the Army at Rosslyn, Va. (16 Mar 2001) [hereinafter Parks Interview IV].

(47.) ICRC SIRUS 2001 SUMMARY REPORT, supra note 5.

(48.) Id.

(49.) Id.

(50.) See generally ICRC supra note 1.

(51.) ICRC, WEAPONS THAT MAY CAUSE UNNECESSARY SUFFERING OR HAVE INDISCRIMINATE EFFECTS (Geneva, 1973); ICRC, CONFERENCE OF GOVERNMENT EXPERTS ON THE USE OF CERTAIN CONVENTIONAL WEAPONS, Lucerne, 24 September to October 18, 1974 (Geneva, 1975); and ICRC, CONFERENCE OF GOVERNMENT EXPERTS ON THE USE OF CERTAIN CONVENTIONAL WEAPONS, Lugano, 28 January to 26 February 1976 (Geneva, 1976). The weapons considered included explosive and penetrating weapons, incendiary weapons, small-caliber projectiles, blast and fragmentation weapons, time-delay weapons, as well as futuristic weapons (directed energy weapons, such as lasers). For statements of the U.S. delegation at the 1974 Lucerne experts meeting, see U.S. DEPARTMENT OF STATE, DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 707-09 (1974).

(52.) Parks Interview I, supra note 5.

(53.) MICHAEL BOTHE, KARL JOSEF PARTSCH & WALDEMAR A. SOLF, NEW RULES FOR VICTIMS OF ARMED CONFLICTS 197 (1982).

(54.) COMMENTARY ON PROTOCOl I, supra note 3.

(55.) Id.

(56.) Id.

(57.) Id. at 402-03.

(58.) Id For a discussion of the 1980 treaty, see YVES SANDOZ,, PROHIBITIONS OR RESTRICTIONS ON THE USE OF CERTAIN CONVENTIONAL WEAPONS 3-33 (1981) and W.J. Fenrick, New Developments in the Law Concerning the Use of Conventional Weapons in Armed Conflict, in XIX THE CANADIAN YEARBOOK OF INT'L L., 229-56 (1981). The 1980 convention is commonly referred to as the UN Conventional Weapons Convention, or NCCW (to distinguish it from the 1993 Chemical Weapons Convention, referred to as the CWC).

(59.) See Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, Oct 10, 1980, U.S. Treaty Doc. No, 103-25, at 6, 1342 U.N.T.S. 137, 19 I.L.M. 1523 [hereinafter Conventional Weapons Convention of 1980] (containing four protocols of which the United States ratified two: Protocol I (non-detectable fragments--a non-existent weapon), and Protocol II (mines, booby traps and other devises). Protocol II was amended in 1996 and this amended protocol has been ratified by the United States. The additional Conventional Weapons Convention Protocols yet to be ratified by the United States regulate the use of incendiary weapons, and blinding laser weapons [hereinafter Blinding Laser Weapons Protocol] (prohibiting the use of weapons specifically designed, as their sole combat function or as one of their combat functions, to cause permanent blindness to unenhanced vision," but permitting the use of lasers which m ay cause blindness as an "incidental or collateral effect of the legitimate military employment of laser systems). None of the weapons in the Conventional Weapons Convention has been determined to cause unnecessary suffering or superfluous injury. Although both the Biological Weapons Convention of 1972 and the Chemical Weapons Convention of 1993 are arms control agreements, neither contains any provision concluding that either causes unnecessary suffering or superfluous injury. See Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological and Toxic Weapons and on their Destruction, Apr. 10, 1972, 26 U.S.T. 583, 1015 U.N.T.S. 163 [hereinafter Biological Weapons Convention of 1972] (prohibiting the development, storage and use of biological toxins having "no justification for prophylactic, protective, or other peaceful purposes); Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, Jan 13, 1993, 32 I.L.M. 800 [hereinafter Chemical Weapons Convention of 1993] (reaffirming both the Geneva Gas Protocol of 1925 and the Biological Weapons Convention of 1972 in its preamble).

(60.) W. J. Fenrick, The Conventional Weapons Convention: A Modest but Useful Treaty 279 INT'LREV. RED CROSS 498-509 (1990).

(61.) For a discussion of the UN Conventional Weapons Convention and its three initial protocols, see id.; Frits Kalshoven, The Conventional Weapons Convention: Underlying Legal Principles, 279 JNT'L REV. RED CROSS 510-520 (1990); A.P.V. Rogers, Mines, Booby Traps and Other Devices 279 INT'L REV. RED CROSS 521-534 (1990); and W. Hays Parks, The Protocol on Incendiary Weapons 279 INT'L REV. RED CROSS 535-550 (1990).

(62.) Parks Interview I, supra note 5.

(63.) Interview with W. Hays Parks, Special Assistant to The Judge Advocate General of the Army, at The Office of the Judge Advocate General, Rosslyn, Va. (Dec. 27, 2000) [hereinafter Parks Interview II].

(64.) Personal observation of author, who attended the February 20-2, 2001 meeting as an observer.

(65.) Parks Interview II, supra note 63.

(66.) Id.

(67.) Id.

(68.) Id.

(69.) Id.

(70.) Id.

(71.) Id.

(72.) Although the scope of the UNCCW is limited to international armed conflict (Article 1), the scope of the Amended Mines Protocol promulgated at the first review conference was extended to internal armed conflicts (Article 1, Amended Mines Protocol).

(73.) The origins of the more activist ICRC approach began at the end of the Cold War. See LOUISE DOSWALD-BECK AND GERALD C. CAUDERAY, THE DEVELOPMENT OF NEW ANTIPERSONNEL WEAPONS (1990).

(74.) See generally Robin M. Coupland, The Effect of Weapons on Health, 347 THE LANCET 450-51(1996) [hereinafter The Effect of Weapons on Health]; Robin M. Coupland, Abhorrent Weapons and "Superfluous Injury or Unnecessary Suffering:" From Field Surgery to Law, 315 BRIT. MED. J. 1450 (1997) [hereinafter Abhorrent Weapons].

(75.) See INTERNATIONAL COMMITTEE OF THE RED CROSS, Report on THE MEDICAL PROFESSION AND THE EFFECTS OF WEAPONS: THE SYMPOSIUM, Geneva (1996) [hereinafter SYMPOSIUM REPORT] (noting the symposium was held in Montreux, Switzerland, March 8-10, 1996).

(76.) Coupland is also the editor of the SIrUS Project. COUPLAND, THE SIRUS PROJECT, supra note 4, at 5.

(77.) See Robin M. Coupland, The Effects of Weapons: Defining Superfluous Injury and Unnecessary Suffering, 3 MED. & GLOB. SURV. 1 (1996) [hereinafter Defining SIrUS] (noting this article was previously a paper submitted to the 1996 Montreux Symposium, included in the Symposium Report, and previously entitled Can We Define Superfluous Injury and Unnecessary Suffering?).

(78.) COUPLAND, THE SIRUS PROJECT, supra note 4, at 5.

(79.) Id. at 14.

(80.) Id. at 12.

(81.) Id. at 13 (stating the effects of weapons on health should be the basis for legal, ethical, technical, and political decisions with respect to weapons; in other words, what weapons really do to human beings should be the lowest common denominator for different professional concerns).

(82.) Id. at 7.

(83.) Id.

(84.) See generally THE GERMAN FEDERAL MINISTRY OF DEFENSE, COMMENTS OF THE GERMAN FEDERAL MINISTRY OF DEFENSE ON THE CONSULTATION DOCUMENT--"THE SIRUS PROJECT AND REVIEWING THE LEGALITY OF WEAPONS" PUBLISHED BY THE ICRC IN JANUARY 2000 (Jan. 24, 2001) [hereinafter FMOD DOCUMENT]; THE GOVERNMENT OF FINLAND, COMMENTS OF THE GOVERNMENT OF FINLAND TO THE DOCUMENT "THE SIRUS PROJECT AND REVIEWING THE LEGALITY OF WEAPONS" (Sept. 13, 2000) [hereinafter FINLAND DOCUMENT]; THE UNITED KINGDOM PROLIFERATION & ARMS CONTROL SECRETARIAT, PROJECT SIRUS--A CRITIQUE (Dec. 18, 2000) [hereinafter UK DOCUMENT]; THE SWEDISH MINISTRY OF FOREIGN AFFAIRS, THE CONSULTATION PROCESS ON THE SIRUS PROJECT (Oct. 25, 2000) [hereinafter SWEDISH DOCUMENT]; THE PERMANENT REPRESENTATIVE OF THE UNITED STATES OF AMERICA TO THE UN AND OTHER INTERNATIONAL ORGANIZATIONS, COMMENTS ON THE SIRUS PROJECT (Jan. 11, 2001) [hereinafter UNITED STATES DOCUMENT]. These governmental documents were prepared in advance of the January 29-31, 2001, Jongny sur Ve vey Meeting of the Experts on the SIrUS Project. The documents reflected each respective government's concern with the SIrUS Project's data, lack of transparency, and lack of adequate peer review. Id.; see also Jongny sur Vevey Memorandum, supra note 5, at 3 (noting that an invited expert, Ms. Vivienne Nathanson, of the British Medical Association--a staunch advocate of the SirUS Project, in laying out criteria for a proper program, conceded a flaw in the SIrUS data). In that memorandum she stated:

(a) analysis must be open and transparent to peer review;

(b) the data is used to frame and test hypotheses;

(c) the hypothesis must be rejected if the data is not supported; and

(d) the hypothesis must be prepared and tested.

All of these must be accomplished prior to publication. The ICRC met none of these requirements before it published its SIrUS Project Program in 1997. None were met following its May 1999 meeting of experts, despite the strong criticism it received at that time.

Id.

(85.) COUPLAND, THE SIRUS PROJECT, supra note 4, at 22 (arguably the best database because it is the only database available).

(86.) Id. at 7. Coupland notes:

[T]he term 'conventional weapons' has no formal definition, but explaining SIrUS' use of the term to mean those conventional weapons which utilize projectiles or (non-nuclear) explosions and, as a function of their design, inflict physical injury by imparting kinetic energy but not foreseeably to a specific part of the body, the treatment requirements for such injury being well defined. Noting further that the data relating to 'point-detonating' antipersonnel mines show how the measured effects represent the foreseeable effects resulting from their design; these effects distinguish them from other conventional weapons. Therefore, the term 'the effects of conventional weapons' does not include the effects of anti-personnel mines.

Id.

(87.) Id.

(88.) Id. at 22.

(89.) Id. At 8.

(90.) ICRC, THE SIRUS PROJECT, supra note 4, at 2.

(91.) See COUPLAND, THE SIRUS PROJECT, supra note 4.

(92.) Id. at 3.

(93.) Parks Interview IV, supra not 46. Mr. Parks was privy to Dr. Coupland's use of this chart at the XXVIIth Conference of Red Cross and Red Crescent Societies in Geneva between October 31 and November 6, 1999, and again at the ICRC-hosted Expert Meeting on Legal Reviews of Weapons and the SIrUS Project in Jongny sur Vevey on January 30, 2001.. The headings over each column were added by Peter Herby of the ICRC's Mines-Arms Unit in his presentation at the latter meeting. Id.

(94.) Interview with W. Hays Parks, Special Assistant to The Judge Advocate General of the army, at Rosslyn, Va. (Mar. 5, 2001) [hereinafter Parks Interview III].

(95.) For a history of the Incendiaries Protocol (Protocol III, UNCCW), see Parks, supra note 61.

(96.) Parks, supra note 61, at 539.

(97.) Rogers, supra note 61, at 521

(98.) Parks Interview III, supra note 94.

(99.) Id.

(100.) Id.

(101.) W. Hays Parks, Memorandum of Law: Trauvaux Preparatoires and Legal Analysis of Blinding Laser Weapons Protocol, ARMY LAW. June 1997, at 33-41.

(102.) Parks Interview III, supra note 94.

(103.) Id.

(104.) COUPLAND, THE SIRUS PROJECT, supra note 4, at 22. Note that this information comes from COUPLAND, THE SIRUS PROJECT, not from the ICRC, THE SIRUS PROJECT. Id.

(105.) Id. at 23 (stating "[t]hus a weapon which, for example, causes facial disfigurement as a foreseeable effect would give rise to the need for multiple reconstructive operations in a specialized facility [and thus c]riterion 1 would apply"). The SIrUS Project uses a very limited definition of conventional weapon.

(106.) Id. (distinguishing normal foreseeable effects such as fear and stress from weapons designed to produce a abnormal effect such as confusion, calm, or disorientation).

(107.) Id. at 25-26.

(108.) Jongny sur Vevey Memorandum, supra note 5.

(109.) COUPLAND, THE SIRUS PROJECT, supra note 4, at 23 (acknowledging that all weapons produce fear and stress--these reactions are neither specific nor abnormal).

(110.) See MARK BOWDEN, BLACK HAWK DOWN 192 (1999).

(111.) See MAJOR JAMES C. BEYER, MC, USA, WOUND BALLISTICS 410-11, 452-53, 456, 459-60, 468-69 (1962).

(112.) See DERRICK HARRISON, THESE MEN ARE DANGEROUS 129 (1988); see also JOHN LEWES, JOCK LEWES - CO-FOUNDER OF THE SAS 240-24 1, 247 (2000).

(113.) COUPLAND, THE SIRUS PROJECT, supra note 4, at 24.

(114.) See Parks, supra note 61, at 550.

(115.) COUPLAND, THE SIRUS PROJECT, supra note 4, at 24.

(116.) Id.

(117.) COUPLAND, THE SIRUS PROJECT, supra note 4, at 15 (noting the ICRC's wound database grew out of a simple system of data collection which was originally designed to give an indication of the activities of independent ICRC hospitals whose war-wounded patients had been admitted to ICRC hospitals in Peshawar and Quetta (Pakistan/Afghan border), Kabul (Afghanistan), Khao-I-Dang (Thai/Cambodian border), Butare (Rwanda) and Lokichokio (Kenyan/Sudenese border)). Coupland states:

A data form filled out on their death or discharge from surgical wards was as part of the hospital routine. The database currently contains data relating to 26,636 patients, of whom (33.1%) were females, males less than sixteen years old or males of fifty years or more and hence were unlikely to have been combatants. Included in the information recorded for each patient is the cause of injury, the time lapse between injury and admission, the wound classification, the region or regions injured, whether the patient has died, in the hospital, the number of operations, the number of units of blood required, the number of days spent in the hospital, and whether the patient was discharged with amputation of one or both lower limbs. There are inevitably an unknown proportion of forms that are not filled out correctly; an enormous effort has been made to reduce this proportion to a minimum. The readiness of surgeons to score wounds according to the Red Cross wound classification is variable. Some patients lie about t he cause of their injury to gain admission to hospital or may not have known exactly what injured them. Because [of] the constraints imposed on the collection of these data under field conditions, their 'validity' and 'reliability' have not been ascertained by formal independent means.

Id.

(118.) Id. at 25.

(119.) Id.

(120.) JOSEPH H. ALEXANDER, EDSON'S RAIDERS--THE 1ST MARINE RAIDER BATTALION IN WORLD WAR II 102 (2001).

(121.) Id.

(122.) Id.

(123.) See SAMUEL MILNER, VICTORY IN PAPUA 372 (1957); see also RAYMOND PAULL, RETREAT FROM KOKODA 229 (1958).

(124.) BEYER, supra note 111, at 271, and tbl. 52.

(125.) Id. at 278.

(126.) Id. at 308 at fig. 177 (depicting Japanese soldiers killed on the perimeter of Company F, 129th Infantry, 37th Division, in the World War II Bougainville Campaign).

(127.) BEYER, supra note 111, at 258, 314-15.

(128.) Parks Interview III, supra note 94.

(129.) Id. at 271-72, 325, 379.

(130.) COUPLAND, THE SIRUS PROJECT, supra note 4, at 24 (pronouncing Grade 3 as the threshold for defining injury as "unnecessary suffering or superfluous injury").

(131.) Id.

(132.) Id.

(133.) See DUNCAN MACPHERSON, BULLET PENETRATION: MODELING THE DYNAMICS AND THE INCAPACITATION RESULTING FROM WOUND TRAUMA 7 (1994).

(134.) COUPLAND, THE SIRUS PROJECT, supra note 4, at 24.

(135.) Parks Interview I, supra note 5.

(136.) See EMERGENCY WAR SURGERY: SECOND UNITED STATES REVISION OF THE EMERGENCY WAR SURGERY NATO HANDBOOK 17 (Thomas E. Bowen & Ronald F. Bellamy, eds., 1988).

(137.) COUPLAND, THE SIRUS PROJECT, supra note 4, at 24 (asserting that conventional weapons produce less than 10 percent Grade 3 wounds).

(138.) ICRC SIrUS 2001 Summary Report, supra note 5, at 5. The report errs in stating that only one medical expert noted this error. Four medical experts, representing U.S., Sweden, Denmark, and United Kingdom, agreed on the error. Parks Interview III, supra note 94 (Mr. Parks participated in the meeting.).

(139.) Parks Interview III, supra note 94.

(140.) COUPLAND, THE SIRUS PROJECT, supra note 4, at 25.

(141.) Parks Interview III, supra note 94.

(142.) COUPLAND, THE SIRUS PROJECT, supra note 4, at 22.

(143.) Id. at 7.

(144.) Id.

(145.) Id. at 14.

(146.) Parks Interview III, supra note 94.

(147.) Despite repeated efforts, the ICRC has received no mandate from governments for involvement in the determination of weapons issues. See Mk 211 Review 14 Jan 2000, supra note 20, at 5 (providing a brief history of the ICRC's failed efforts to obtain a mandate).

(148.) Id.

(149.) See generally The St. Petersburg Declaration of 1868, supra note 20, The Hague Convention No. IV, Protocol I, COMMENTARY ON PROTOCOL I, supra note 3; Meyrowitz Article, supra note 3.

(150.) See supra note 117.

(151.) Id.

(152.) Id.

(153.) Andrew Koch, Should War Be Hell?, JANE'S DEFENSE WEEKLY, May 10, 2000, at 24 (quoting, in his own words, "a renowned scholar and recognized legal expert in the field of weapons legality," Mr. W. Hays Parks, Special Assistant to the United States Army, Judge Advocate General).

(154.) Id. at 25.

(155.) Trip Report 19 May 1999, supra note 46, at 7.

(156.) COUPLAND, THE SIRUS PROJECT, supra note 4, at 26-27.

(157.) Trip Report 19 May 1999, supra note 46, at 7.

(158.) ICRC, The SIrUS Project, supra note 4, at Annex 2.

(159.) Trip Report 19 May 1999, supra note 46, at 7 (stating that at the ICRC's meeting of experts held in Geneva May 10-11, 1999, near-consensus was reached among the invited experts that the SIrUS criteria are flawed, either as a result of questionable data or ambiguous standards).

(160.) COUPLAND, THE SIRUS PROJECT, supra note 4, at 7.

(161.) Trip Report 19 May 1999, supra note 46, at 1. See Massive Evacuation from Borneo Set, WASH. TIMES, Feb. 24, 2001, at A-7. Daniel Cooney, Thousands Flood Ship to Flee Borneo After Ethnic Attacks, THE WASH. TIMES, Feb. 25, 2001, at A-8.

(162.) Protocol I, art. 36, supra note 3.

(163.) Trip Report 19 May 1999, supra note 46, at 4.

(164.) Id. at 5. As previously indicated, the number of States Parties to Protocol I has increased to 158 without any increase in the number of States with weapons review programs. See id.

(165.) Id. at 4.

(166.) Id. at 2.

(167.) Jongny sur Vevey Memorandum, supra note 5, at 2.

(168.) See the FINLAND, FMOD, UK, SWEDISH; and UNITED STATES DOCUMENT, all supra note 84.

(169.) Id.

(170.) Parks Interview I, supra note 5.

(171.) See U.S. DEP'T OF DEFENSE INSTR. 5500.15, REVIEW OF LEGALITY OF WEAPONS UNDER INTERNATIONAL LAW, (Oct. 16, 1974) [hereinafter DoD INSTR. 5500.15].

(172.) See U.S. DEP'T OF AIR FORCE INSTR. 51-402, WEAPONS REVIEW DEFENSE, (May 13, 1994) [hereinafter AFT 51-402]; U.S. DEP'T OF ARMY, REG. 27-53, LEGAL SERVICES: REVIEW OF LEGALITY OF WEAPONS UNDER INTERNATIONAL LAW, (Jan. 1, 1979) [hereinafter AR 27-53]; U.S. DEP'T OF NAVY, SECRETARY OF THE NAVY INSTR. 5000.2B, IMPLEMENTATION OF MANDATORY PROCEDURES FOR MAJOR AND NON-MAJOR DEFENSE ACQUISITION PROGRAMS AND MAJOR AND NON-MAJOR INFORMATION TECHNOLOGY ACQUISITION PROGRAMS, (Dec. 6, 1996) [hereinafter SECNAV INSTR 5000.2B].

(173.) Parks Interview I, supra note 5.

(174.) See DOD DIR. 5100.77, supra, note 6, at para. 2.3 ("[I]n further implementation of this Directive, that part of the law of war relating to legal reviews of the development, acquisition, and procurement of weapons and weapons systems for the DoD components is addressed in DoD Directive 5000.1 ...."); U.S. DEP'T OF DEFENSE, DIR. 5000.1, DEFENSE ACQUISITION, (15 Mar. 1996) [hereinafter DoD DIR. 5000.1] replaced by DoD DIR 5000.1, DEFENSE ACQUISITION (23 Oct. 2000) [hereinafter DIR. 5000.1]. Note that the language referenced in DoD DIR. 5100.77 is currently found in U.S. DEP'T OF DEFENSE, INS. 5000.2, DEFENSE ACQUISITION (23 Oct. 2000) [hereinafter DoD INSTR. 5000.2] para. 4.7.3.1.4 (appointing the general counsel and alternatively the service judge advocate general responsible for reviewing the legality of weapons in international law). This paragraph states:

DoD acquisition and procurement of weapons and weapon systems shall be consistent with all applicable domestic law and all applicable treaties, customary international law, and the law of armed conflict (also known as the laws and customs of war). The Head of each DoD Component shall ensure that all Component activities that could reasonably generate questions concerning compliance with obligations under arms control agreements to which the United States is a party shall have clearance from the USD(AT&L), in coordination with the General Counsel, DoD, and the Under Secretary of Defense (Policy), before such activity is undertaken. The Head of each DoD Component shall ensure that the Component's General Counsel or Judge Advocate General, as appropriate, conducts a legal review of the intended acquisition of a potential weapon or weapon system to determine that it is consistent with U.S. obligations. The review shall be conducted again before the award of a system development and demonstration contract for the weapon or weapon system and before the award of the initial production contract. Files shall be kept permanently. Additionally, legal reviews of new, advanced or emerging technologies that may lead to development of weapons or weapon systems are encouraged.

(175.) See U.S. DEP'T OF DEFENSE, DIR. 3000.3, POLICY FOR NON LETHAL WEAPONS, Jul. 9, 1996) [hereinafter DoD DIR. 3000.3].

(176.) DoD INSTR. 5000.2, supra note 174.

(177.) Id. At para. 1.1.

(178.) Id. at para. 1.3.

(179.) Id. at para. E2.1.17.

(180.) Id.

(181.) Id.

(182.) Id. at para. 4.7.3.1.4.

(183.) See U.S. DEP'T OF DEFENSE, DIR. 5100.77, DoD LAW OF WAR PROGRAM, supra note 44 at para. 4.1. For an example of such a review, see Memorandum, Office of the Judge Advocate General of the Army, International and Operational Law, to The Judge Advocate General of the Army, Subject: Legal Review of Mk.211, MOD O, Cal. .50 Multipurpose Projectile, (17 Jan 1999) [hereinafter Multipurpose Projectile Review].

(184.) See U.S. DEP'T OF DEFENSE, DIR. 5100.77, DoD LAW OF WAR PROGRAM, supra note 44, at para. 4.1.

(185.) Id.

(186.) Id.

(187.) For an example of such a review, see Memorandum, Office of the Judge Advocate General of the Army, International and Operational Law, to The Judge Advocate General of the Army, Subject: Lead-free, Tungsten Cor 5.56mm Ammunition (15 Mar. 1999) [hereinafter Tungsten Core 5.56mm Review] (on file with author).

(188.) For an example of such a review, see Memorandum, Office of the Judge Advocate General of the Army, International and Operational Law, to The Judge Advocate General of the Army, Subject: Crusader Weapon System (12 Jul. 1999) [hereinafter Crusader Weapon System Review] (on file with author).

(189.) For an example of such a review, see Memorandum, Office of the Judge Advocate General of the Army, International and Operational Law, to The Judge Advocate General of the Army, Subject: Line-of-Sight Anti-Tank Weapon System (8 Jun. 2000) [hereinafter Tank Weapon System Review] (on file with author).

(190.) Tungsten Core 5.56mm Review, supra note 187.

(191.) Conventional Weapons of 1980, supra note 59, at Protocol I. For an example of such a review, see Memorandum, Office of the Judge Advocate General of the Army, International and Operational Law, to The Judge Advocate General of the Army, Subject: Modular Crowd Control Munition (13 Oct. 1998) [hereinafter Modular Crowd Control Review] (on file with author).

(192.) For an example of such a review, see Memorandum, Office of the Judge Advocate General of the Army, International and Operational Law, to The Judge Advocate General of the Army, Subject: Bounding Non-Lethal Munition (7 Jan. 1999) [hereinafter Bounding Non-Lethal Review] (on file with author) (having been informed of legal requirements, the project manager determined compliance would not be cost effective)

(193.) DOD INSTR. 5000.2, supra note 174, at para. 4.5.1

(194.) Id. at para. 4.6.1.4.

(195.) See U.S. DEP'T OF AIR FORCE POL'Y DIR. 51-4, COMPLIANCE WITH THE LAW OF ARMED CONFLICT, PARA. 6.5 (26 APR. 1993) [hereinafter AFPD 51-4] (defining the term "weapon" for the purpose of the policy directive and expressly excluding "aircraft, intercontinental ballistic missiles, and other launch platforms" from that definition). Note that weapon reviews are required under Additional Protocol I for weapons such as rifles, ammunition, and other instruments of warfare and their target or guidance hardware, not for weapons platforms such as planes, tanks, and ships. In the acquisition directives, the term weapons system is used interchangeably to describe weapons as well as weapon platforms.

(196.) DOD INSTR. 5000.2, supra note 174.

(197.) The Hague Convention No. IV, supra note 3.

(198.) Protocol I, supra note 3.

(199.) Parks Interview I, supra note 5.

(200.) See Memorandum, Office of the Judge Advocate General of the Navy International and Operational Law, to Commandant of the Marine Corps, subject: Legal Review of 40mm Rubber/Foam Rubber Multiple Baton/BeanBag/Wood Multiple Baton Rounds (30 Jan. 1995) [hereinafter Navy Review of 40mm Rounds] (on file with author). The review explains the extent of what the weapons review must cover:

(1) whether the weapon causes suffering that is needless, superfluous, or disproportionate to the military advantage reasonably expected from the use of the weapon:

(2) whether the weapon is capable of being controlled so as to be directed against a lawful target--not indiscriminate in their effect; and

(3) whether there is a specific rule of law prohibiting its use in the law of armed conflict.

Id. at 2, 3.

(201.) Recall that the SIrUS Project made no reference to this entire area of consideration in its proposal to determine which weapons produce unnecessary suffering or superfluous injury. Its determinations were completely effect-based and ignored the weapon's military utility or advantage.

(202.) Parks Interview I, supra note 5.

(203.) For an example of such a review, see Memorandum for the Staff Judge Advocate, U.S. Special Operations Command, The Judge Advocate General of the Army, subject: Legal Review, Selectable Lightweight Attack Munition (SLAM) (2 May 1997) [hereinafter Army SLAM Review] (on file with author).

(204.) For an example of such a review, see Memorandum for the Staff Judge Advocate, U.S. Special Operations Command, The Judge Advocate General of the Army, subject: Legal Review, Special Operations Forces Use of Hollow-Point Handgun Ammunition (27 March 1996) [hereinafter Army Hollow Point Review] (on file with author).

(205.) For an example of such a review, see Memorandum for the Commander, Marine Corps Systems Command, The Judge Advocate General of the Army, subject: Legal Review, Joint Service Combat Shotgun Program (24 Jan. 1997) [hereinafter Army Combat Shotgun Review] (on file with author).

(206.) Parks Interview III, supra note 94. For an example of such a review, see Memorandum for Picatinny Arsenal, AMSTA-AR-GC, The Judge Advocate General of the Army, subject: Legal Review 155mm High Explosive, M795 Projectile (22 June 2000) [hereinafter Picatinny Review] (on file with author).

(207.) Parks Interview III, supra note 94.

(208.) For an example of such a review, see Memorandum for Commandant, U.S. Marine Corps, The Judge Advocate General of the Navy, subject: Legal Review of Sticky Foam (6 Feb. 1995) [hereinafter Navy Sticky Foam Review] (on file with author).

(209.) Parks Interview III, supra note 94.

(210.) See YVES SANDOZ, THE INTERNATIONAL COMMITTEE OF THE RED CROSS AS GUARDIAN OF INTERNATIONAL HUMANITARIAN LAW 6 (1998) [hereinafter ICRC GUARDIAN OF IHL] (explaining the ICRC's less well-know role as "guardian" of international humanitarian law).

(211.) Id. Sandoz describes further

"the 'guardian' role encompasses the following five functions:

(1) the "monitoring" function -- i.e., constant reappraisal of humanitarian rules to ensure that they are geared to the reality of conflict situations, and preparing for their adaptation and development when necessary;

(2) the "catalyst" function -- i.e., stimulating, especially within groups of governmental and other experts, discussion of problems encountered and possible solutions, whether such solutions involve changes to the law or otherwise;

(3) the "promotion" function -- i.e., defending international humanitarian law against legal developments that disregard its existence or might tend to weaken it;

(4) the "direct action" function -- i.e., making a direct and practical contribution to application of the law in situations of armed conflict;

(5) the "watchdog" function -- i.e., raising the alarm, first among the States and other parties directly concerned in an armed conflict, and thereafter among the international community as a whole, whenever serious violations of the law occur.

Id.

(212.) Id. at 7.

(213.) Jongny sur Vevey Memorandum, supra note 5, at 4.

(214.) Protocol I, supra note 3.

(215.) Id.

(216.) Id.

(217.) Jongny sur Vevey Memorandum, supra note 5, at 4.

(218.) Trip Report 19 May 1999, supra note 46.

(219.) Parks Interview III, supra note 94.

(220.) Id.

(221.) Id.

(222.) See Mk 211 Review 14 Jan. 2000, supra note 20, at 17:

[T]he prohibition of unnecessary suffering constitutes acknowledgement that necessary suffering to combatants is lawful, and may include severe injury or loss of life. There is no agreed definition for unnecessary suffering. Whether a weapon or munition causes unnecessary suffering is ascertained by determining whether the injury (including death) to combatants is manifestly disproportionate to its stated purpose(s), that is, its intended uses(s), and the military advantage to be gained from its use. In conducting the balancing test necessary to determine a weapons' legality, the effects of the weapon cannot be viewed in isolation. They must be examined against comparable, lawful weapons in use on the modem battlefield, and the military necessity for the weapon or projectile under consideration.

(223.) Isabelle Daoust, ICRC, Expert Meeting on Legal Reviews of Weapons and the SIrUS Project, 842 INT'L REV. RED CROSS 539-542 (June 30, 2001). The ICRC held an Expert Meeting on Legal Reviews of Weapons and the SIrUS Project (Jongny sur Vevey, Jan. 29-31, 2001) in response to the Plan of Action adopted at the 27th International Conference of the Red Cross and Red Cresent (Geneva, 1999). The Plan of Action called for a process of consultation between States and the ICRC on legal reviews of weapons and how the findings of the SIrUS Project could be taken into account. However, at the January 2001 meeting, the experts did not adopt conclusions or recommendations. The ICRC's proposals were not broadly accepted in the form presented in the SIrUS Project. However, the experts acknowledged the need for particularly rigorous and multidisciplinary weapons reviews, especially when weapons injure by means other than explosives, projectile force, or bums and have unfamiliar effects. The finding is extremely important to the ICRC's support and efforts with regard to the SIrUS Project given the potential injury mechanisms of future weapons. As such, it appears the true essence of ICRC's SIrUS Project has been handed a near death blow; but, it is well-known that the Phoenix tends to rise from the ashes.

* Major Verchio (B.S., University of Scranton; J.D. Rutger--The State University of New Jersey--Camden; LL.M., The Army Judge Advocate General School) is a Judge Advocate with the United States Air Force currently assigned is Legal Advisor, Information Operations Technology Center, Office of the General Counsel, National Security Agency. She is a member of the Bar in the state of New Jersey and Pennsylvania.

COPYRIGHT 2001 U.S. Air Force, Academy Department of Law
COPYRIGHT 2004 Gale Group

联系我们|关于我们|网站声明
国家哲学社会科学文献中心版权所有