Legal concerns
Before the SOST round could be fielded by the Corps, it had to clear a legal hurdle: approval that it met international law of war standards.
The process is standard for new weapons and weapons systems, but it took on added significance because of the bullet’s design. Open-tip bullets have been approved for use by U.S. forces for decades, but are sometimes confused with hollow-point rounds, which expand in human tissue after impact, causing unnecessary suffering, according to widely accepted international treaties signed following the Hague peace conventions held in the Netherlands in 1899 and 1907.
“We need to be very clear in drawing this distinction: This is not a hollow-point round, which is not permitted,” Brogan said. “It has been through law of land warfare review and has passed that review so that it meets the criteria of not causing unnecessary pain and suffering.”
The open-tip/hollow-point dilemma has been addressed several times by the military, including in 1990, when the chief of the Judge Advocate General International Law Branch, now-retired Marine Col. W. Hays Parks, advised that the open-tip M852 Sierra MatchKing round preferred by snipers met international law requirements. The round was kept in the field.
In a 3,000-word memorandum to Army Special Operations Command, Parks said “unnecessary suffering” and “superfluous injury” have not been formally defined, leaving the U.S. with a “balancing test” it must conduct to assess whether the usage of each kind of rifle round is justified.
“The test is not easily applied,” Parks said. “For this reason, the degree of ‘superfluous injury’ must … outweigh substantially the military necessity for the weapon system or projectile.”
John Cerone, an expert in the law of armed conflict and professor at the New England School of Law, said the military’s interpretation of international law is widely accepted. It is understood that weapons cause pain in war, and as long as there is a strategic military reason for their employment, they typically meet international guidelines, he said.
“In order to fall within the prohibition, a weapon has to be designed to cause unnecessary suffering,” he said.
Sixteen years after Parks issued his memo, an Army unit in Iraq temporarily banned the open-tip M118 long-range used by snipers after a JAG officer mistook it for hollow-tip ammunition, according to a 2006 Washington Times report. The decision was overturned when other Army officials were alerted.
