OCTOBER 1997 THE ARMY LAWYER • DA-PAM 27-50-299 16

Joint Service Combat Shotgun Program

W. Hays Parks

Special Assistant for Law of War Matters,

Office of The Judge Advocate General, U.S. Army

Washington, D.C.

Introduction

There is a long history of the use of shotguns in combat. But

in the closing days of World War I, Germany objected to the

U.S. use of shotguns, claiming their use violated the law of war.

Although the German claim was promptly rejected by the

United States, questions about the legality of shotguns persisted.

This article1 sets forth the history of the combat use of

shotguns, the 1918 German protest and U.S. response, and an

analysis of the issue in contemporary terms. The memorandum

of law upon which this article is based was coordinated with the

other services, Army and DOD General Counsel, and the

Department of State, and it reaffirms the legality of the shotgun

for combat use.

The Requirement for a Legal Review

Various regulations require a legal review for all weapons

which will be procured to meet a military requirement of the

armed forces of the United States.2 The purpose of the legal

review is to ensure that the intended use of each weapon,

weapon system, or munition is consistent with customary international

law and the international law obligations of the United

States, including law of war treaties and arms control agreements

to which the United States is a party. Accordingly, the

commander of the United States Marine Corps Systems Command

requested a joint legal review of the Joint Service Combat

Shotgun program by the Offices of the Judge Advocate Generals

of the Army, Navy, and Air Force.

The Program

The Joint Service Combat Shotgun (Combat Shotgun) is a

joint program to select and field a lightweight, semiautomatic,

12-gauge shotgun to replace pump action shotguns currently in

use by each of the military services. The Marine Corps is acting

as the lead service for the program, and the U.S. Army, Navy,

Air Force, and Coast Guard are the participating services. The

Joint Service Small Arms Program office conducts general

oversight of the program and provides research, development,

testing, and evaluation funding to support the procurement

effort. The commander of the Marine Corps Systems Command

has been designated as the Milestone Decision Authority

for the program.

The Combat Shotgun to be procured and fielded will be

required to satisfy the following operational and physical

requirements described in the Joint Operational Requirement

Document and further amplified in the contract Purchase

Description:

(1) Capable of semiautomatic operation.

(2) Capable of firing both standard Department

of Defense (DOD) 2.75-inch, 12-gauge

No. 00 buckshot, No. 7 1/2 shot, No. 9 shot,

and slug ammunition,3 and 3.0-inch 12-

gauge commercial ammunition conforming

to Sporting Arms and Ammunition Manufacturers’

Institute (SAAMI) standards without

adjustment to the operating system. The

Marine Corps Systems Command is unaware

of any DOD acquisition programs to procure

and type classify 3.0-inch, 12-gauge ammunition

for use by DOD components.4

(3) Have a maximum effective range of forty

meters (fifty meters desired) with the DOD

standard 2.75-inch No. 00 buckshot ammunition,

and 100 meters (125 meters desired)

with slug ammunition.

(4) Have a length of 41.75 inches or less and

be capable of being reconfigured to, and be

operated at a length of, 36 inches or less.

(5) Weigh no more than 8.5 pounds (six

pounds desired) unloaded.

1. This article is derived from the author’s legal review, dated 24 January 1997, of the Joint Service Combat Shotgun Program, which he wrote for The Judge Advocate

General, U.S. Army.

2. U.S. DEP’T OF DEFENSE, DIR. 5000.1, DEFENSE ACQUISITION (15 Mar. 1996) [hereinafter DOD DIR. 5000.1]; U.S. DEP’T OF ARMY, REG. 27-53, REVIEW OF LEGALITY

OF WEAPONS UNDER INTERNATIONAL LAW (1 Jan. 1979); U.S. DEP’T OF NAVY, SECRETARY OF THE NAVY INSTR. 5711.8A, REVIEW OF LEGALITY OF WEAPONS UNDER INTERNATIONAL

LAW (29 Jan. 1988); U.S. DEP’T OF AIR FORCE, INSTR. 51-402, WEAPONS REVIEW (13 May 1994).

3. The 12-guage door-breaching cartridge was the subject of a coordinated review that approved that round. Shotgun slug ammunition, an antimateriel munition,

will be the subject of a separate review.

4. Memorandum, Commander, Marine Corps Systems Command, subject: Joint Service Combat Shotgun Program, Request for Legal Review (13 Sept. 1996).

OCTOBER 1997 THE ARMY LAWYER • DA PAM 27-50-299 17

(6) Be equipped with Low Light Level iron

sights and a standard U.S. Military accessory

mounting rail integral to the upper receiver,

to permit use of other sight enhancement

devices.

The Combat Shotgun will be employed by personnel in each

of the armed services in international armed conflict, internal

armed conflict, and military operations other than war and will

be used for missions to include the execution of security/interior

guard operations, rear area security operations, guarding

prisoners of war, raids, ambushes, military operations in urban

terrain, and selected special operations.

History 5

As history constitutes State practice, consideration of the

legality of the Combat Shotgun requires a summary of the history

of the military use of shotguns and related legal issues.

The military history of the shotgun dates to the middle of the

sixteenth century, when the blunderbuss was invented in Germany

and the smoothbore Birding Piece or Long Fowler was

developed in England. While the latter was developed for hunting,

the former was a close-range, antipersonnel weapon from

the outset. The dual use—for hunting and personal protection

—and greater range of the Long Fowler caused it to survive

and to flourish as the blunderbuss began to wane in the first

quarter of the nineteenth century.

The blunderbuss saw considerable use by British, European,

and American military forces before its ultimate demise. Austrian,

Prussian, and British regiments were equipped with the

blunderbuss; for example, British General Sir John Burgoyne

raised a Light Dragoon Regiment in 1781 equipped with the

blunderbuss. Navies employed the blunderbuss as a weapon

for repelling boarding parties. The blunderbuss and the shotgun

established the character of the modern military shotgun: a

multiple-projectile weapon for close-range combat. Development

of the high-velocity, small-caliber rifle which possesses

greater range and accuracy, resulted in an initial decline in the

use of the shotgun in combat, a trend which began to reverse in

World War I. There is no known evidence that shotgun use in

combat diminished because of a question as to its legality.6

The combat shotgun or military rifle with a shotgun-type

munition continued to be used in the United States. In the

American Revolution, General George Washington encouraged

his troops to load their muskets with "buck and ball," a load

consisting of one standard musket ball and three to six buckshot,

in order to increase the probability of achieving a hit. In

the subsequent Seminole Indian Wars in Florida (1815-1845),

buck-and-ball was standard issue for military muskets.

As the buck-and-ball round slowly succumbed to improvements

in small arms technology that brought greater rifle accuracy,

the shotgun remained in military use. Texans made

effective use of the shotgun in their unsuccessful defense of the

Alamo (6 March 1836) and their defeat of the Mexican Army

forces of General Santa Anna in the battle of San Jacinto six

weeks later. In the subsequent war with Mexico in 1846,

Marine Corps Major Levi Twiggs employed a shotgun, reportedly

with good effect, during the Marine Corps’ march from

Vera Cruz to Mexico City. During the American Civil War, .58-

and .69-caliber smoothbore rifles using buck-and-ball, and

shotguns, were used in combat by Union and Confederate

forces, primarily by cavalry units. For example, the shotgun

was a preferred weapon for the Confederate cavalry commanded

by General Nathan Bedford Forrest, who readily saw

its value for close-quarter combat. United States Cavalry units

subsequently employed shotguns during the Indian wars

between 1866 and 1891.

Shotguns were employed by United States Army and Marine

Corps units during the insurrection that raged in the Philippines

from 1899 to 1914, and by Brigadier General John Pershing in

the 1916 punitive expedition into Mexico in pursuit of Pancho

Villa. When World War I entered its stalemated trench warfare

phase, both French and British High Commands considered,

but rejected, the use of double-barreled shotguns in trench

defense. The rejection of their use was not due to any questions

as to their legality, but was due to the perceived ineffectiveness

of their light bird shot loads and, undoubtedly, the requirement

for and difficulty of frequent, quick reloading of a double-barreled

shotgun in close combat. When the United States entered

World War I in 1917, General Pershing was placed in command

of the American Expeditionary Forces (AEF). General Pershing’s

forces employed 12-gauge repeating (pump action) shotguns,

loaded with six No. 00 buckshot shells, for close-range

defensive fires against enemy infantry assaults, trench raids,

and assaults on enemy trenches and machine gun positions.

The highly-effective use of the shotgun by United States

forces had a telling effect on the morale of front-line German

troops. On 19 September 1918, the German government issued

a diplomatic protest against the American use of shotguns,

alleging that the shotgun was prohibited by the law of war.7

After careful consideration and review of the applicable law by

The Judge Advocate General of the Army, Secretary of State

5. The primary source for this historical section is Thomas F. Swearengen’s authoritative source on the subject. THOMAS F. SWEARENGEN, THE WORLD’S FIGHTING

SHOTGUNS (1978); see also Paul B. Jenkins, Trench Shotguns of the AEF, THE AM. RIFLEMAN, Nov. 1935, at 14-15, 22; Howard M. Madaus, The Use of the Percussion

Shotgun in Texas Prior to and During the American Civil War, 1861-1865, ARMAX, at 133-172 (1995).

6. The 1918 German protest and the language of its present law of war manual are discussed infra.

7. The German protest and U.S. response are discussed in greater detail infra.

OCTOBER 1997 THE ARMY LAWYER • DA-PAM 27-50-299 18

Robert Lansing rejected the German protest in a formal note.

This is the only known occasion in which the legality of actual

combat use of the shotgun has been raised.

Shotguns were employed by Allied-supported partisans and

guerrillas in Europe and Asia during World War II, and by the

United States Army and Marine Corps in the Pacific and China-

Burma-India (CBI) theaters. The short range of the shotgun

made it of limited value for conventional forces in the open

European battlefields, but its close-range effectiveness made it

invaluable in the dense jungle battlefields of the Pacific and

CBI theaters. Shotguns were employed in combat in the Korean

War, primarily for command post security and close-range protection

for machine-gun positions. Human-wave attacks by

North Korean and Chinese forces led to the development of the

Claymore mine, a multiple-fragmentation antipersonnel munition

that performs like a shotgun in its directed dispersion of

fragments.

In the post-World War II insurgency/counterinsurgency era,

shotguns were employed by guerrilla and military forces in virtually

every conflict in sub-Sahara Africa, Latin and South

America, and Southeast Asia. In their successful counterinsurgency

campaign in Malaya (1948-1959), British forces

employed shotguns in jungle operations, as did British, Australian,

and New Zealand special operations forces in their 1963-

1966 Borneo campaign. Shotguns were employed by Viet

Minh and French forces in the Indochina War (1946-1954) and

by the Viet Cong against the military forces of the Government

of the Republic of South Vietnam (1956-1975). United States,

Australian, and New Zealand units employed shotguns in their

operations against Viet Cong guerrillas and North Vietnamese

military forces in the Republic of Vietnam (1965-1972). They

also used the Claymore mine and a shotgun round for the M79

grenade launcher. United States Marine Corps personnel

employed shotguns in the recapture from Cambodian forces of

the container ship Mayaguez on 12 May 1975. United States

Air Force security police employed shotguns in base security

operations in Saudi Arabia during Operations Desert Shield and

Desert Storm (1990-91) to protect them from attack by terrorists

or Iraqi military units, and some personnel in British

armored units were armed with shotguns as individual weapons

during that conflict.

The history of combat use of the shotgun reveals that it is a

limited range but highly effective close-range, specialized

weapon. Although recorded use has been primarily by United

States and British military forces and their close allies, the shotgun

has been employed in combat by the militaries of other

nations and guerrilla or partisan forces where its use was of

value for a specific mission, or in a particular conflict where its

close-range effectiveness provided a military advantage. There

is substantial State practice of shotgun use in combat over more

than two centuries. In contrast, there is no known evidence that

shotgun use in combat has been curtailed by any nation due to

concerns as to its inconsistency with the law of war.

Legal Considerations and Analysis

The Combat Shotgun raises two issues with regard to its

legality. First, does a weapon capable of inflicting multiple

wounds upon a single enemy combatant cause superfluous

injury, as prohibited by Article 23(e) of the Annex to the Hague

Convention IV Respecting the Laws and Customs of War on

Land of 18 October 1907? Second, does the No. 00 buckshot

projectile, or other smaller buckshot projectiles, expand or flatten

easily, in violation of the Hague Declaration Concerning

Expanding Bullets of 29 July 1899? Each of these questions

will be addressed in the analysis that follows.

Does a Weapon Capable of Inflicting Multiple Wounds

upon a Single Enemy Combatant Cause Superfluous

Injury, as Prohibited by the Law of War?

Treaty Law

The principal treaty provision to which the United States is

a party relating to the legality of weapons is contained in Article

23(e) of the Annex to Hague Convention IV Respecting the

Laws and Customs of War on Land of 18 October 1907,8 which

prohibits the employment of "arms, projectiles, or material calculated

to cause unnecessary suffering."9 In some texts, the

term superfluous injury is used in lieu of unnecessary suffering.

While the two terms often are regarded as synonymous, the

former is the more accurate translation from the authentic

French text—"propres a causer des maux superflus."10

Neither superfluous injury nor unnecessary suffering has

been defined. In determining whether a weapon causes superfluous

injury, a balancing test is applied between the force dictated

by military necessity to achieve a legitimate objective visa-

vis injury that may be considered superfluous to the achievement

of the stated or intended objective (in other words,

whether the suffering caused is out of proportion to the military

advantage to be gained). The test is not easily applied; a

weapon that can incapacitate or wound lethally at, for example,

300 meters or longer ranges may result in a greater degree of

incapacitation or greater lethality at lesser ranges. For this reason,

the degree of "superfluous" injury must be clearly disproportionate

to the intended objective(s) for development of the

weapon (that is, the suffering must outweigh substantially the

military necessity for the weapon).

8. Hague Convention IV Respecting the Laws and Customs of War on Land, Oct. 18, 1907, annex, art. 23e, 36 Stat. 2277.

9. Id.

10. Id.

OCTOBER 1997 THE ARMY LAWYER • DA PAM 27-50-299 19

The fact that a weapon causes injury or death does not lead

to the conclusion that the weapon causes superfluous injury, or

is illegal per se. Military necessity recognizes that weapons of

war lead to death, injury, and destruction; the act of combatants

killing or wounding enemy combatants in battle is a legitimate

act under the law of war. That the law of war prohibits unnecessary

suffering is an acknowledgment that the law of war recognizes

as legitimate necessary suffering in combat. Deadly

force also may be used lawfully against persons who are committing

or threatening to commit crimes of violence who are not

protected by the law of war, such as terrorists.

What is prohibited is the design or modification and employment

of a weapon for the purpose of causing suffering beyond

that required by military necessity. In conducting the balancing

test necessary to determine a weapon’s legality, the effects of a

weapon cannot be weighed in isolation. They must be examined

against comparable weapons in use on the modern battlefield

and the military necessity for the weapon under

consideration.

The 1918 German Protest 11

On 19 September 1918, the Government of Switzerland,

representing German interests in the United States, presented to

the U.S. Secretary of State a cablegram received by the Swiss

Foreign Office containing the following diplomatic protest by

the Government of Germany:

The German Government protests against the

use of shotguns by the American Army and

calls attention to the fact that according to the

law of war (Kriegsrecht) every [U.S.] prisoner

[of war] found to have in his possession

such guns or ammunition belonging thereto

forfeits his life. This protest is based upon

article 23(e) of the Hague convention [sic]

respecting the laws and customs of war on

land. Reply by cable is required before October

1, 1918.

The German protest was precipitated in part by the capture

in the Baccarat Sector (Lorraine) of France, on 21 July 1918, of

a U.S. soldier from the 307th Infantry Regiment, 154th Infantry

Brigade, 77th Division, AEF, who was armed with a 12-gauge

Winchester Model 97 repeating trench (shot) gun, and a second,

similarly-armed AEF soldier from the 6th Infantry Regiment,

10th Infantry Brigade, 5th Division, on 11 September 1918 in

the Villers-en-Haye Sector. Each presumably possessed issue

ammunition, which was the Winchester "Repeater" shell, containing

nine No. 00 buckshot.

The German protest was forwarded by the Department of

State to the War Department, which sought the advice of The

Judge Advocate General of the Army. Brigadier General Samuel

T. Ansell, Acting Judge Advocate General, responded by

lengthy memorandum dated 26 September 1918. Addressing

the German protest, General Ansell stated:

Article 23(e) simply calls for comparison

between the injury or suffering caused and

the necessities of warfare. It is legitimate to

kill the enemy and as many of them, and as

quickly, as possible . . . . It is to be condemned

only when it wounds, or does not kill

immediately, in such a way as to produce suffering

that has no reasonable relation to the

killing or placing the man out of action for an

effective period.

The shotgun, although an ancient weapon,

finds its class or analogy, as to purpose and

effect, in many modern weapons. The dispersion

of the shotgun [pellets] . . . is adapted

to the necessary purpose of putting out of

action more than one of the charging enemy

with each shot of the gun; and in this respect

it is exactly analogous to shrapnel shell discharging

a multitude of small [fragments] or

a machine gun discharging a spray of . . . bullets.

The diameter of the bullet is scarcely greater

than that of a rifle or machine gun. The

weight of it is very much less. And, in both

size and weight, it is less than the . . . [fragments]

of a shrapnel shell . . . . Obviously a

pellet the size of a .32-caliber bullet, weighing

only enough to be effective at short

ranges, does not exceed the limit necessary

for putting a man immediately hors de combat.

The only instances even where a shotgun

projectile causes more injury to any one

enemy soldier than would a hit by a rifle bullet

are instances where the enemy soldier has

approached so close to the shooter that he is

struck by more than one of the nine . . . [No.

00 buckshot projectiles] contained in the cartridge.

This, like the effect of the dispersing

of . . . [fragments] from a shrapnel shell, is

permissible either in behalf of greater effectiveness

or as an unavoidable incident of the

use of small scattering projectiles for the nec-

11. See U.S. DEP’T OF STATE, PAPERS RELATING TO THE FOREIGN RELATIONS OF THE UNITED STATES, 1918, Supp. 2 (The World War), at 785-86 (1933). This summary is

based upon official correspondence contained in this and related official documents.

OCTOBER 1997 THE ARMY LAWYER • DA-PAM 27-50-299 20

essary purpose of increasing [the] likelihood

of killing a number of enemies.

General Ansell concluded his memorandum with the statement

that "The protest is without legal merit."

Acting Secretary of War Benedict Crowell endorsed General

Ansell’s memorandum of law and forwarded it to the Secretary

of State that same day. Secretary of State Robert Lansing provided

the following reply to the Government of Germany two

days later:

[T]he . . . provision of the Hague convention,

cited in the protest, does not . . . forbid the use

of this . . . weapon . . . . [I]n view of the history

of the shotgun as a weapon of warfare,

and in view of the well-known effects of its

present use, and in the light of a comparison

of it with other weapons approved in warfare,

the shotgun . . . cannot be the subject of legitimate

or reasonable protest.

. . . .

The Government of the United States

notes the threat of the German Government

to execute every prisoner of war found to

have in his possession shotguns or shotgun

ammunition. Inasmuch as the weapon is

lawful and may be rightfully used, its use will

not be abandoned by the American Army . . .

[I]f the German Government should carry

out its threat in a single instance, it will be the

right and duty of the . . . United States to

make such reprisals as will best protect the

American forces, and notice is hereby given

of the intention of the . . . United States to

make such reprisals.

World War I ended six weeks later, without reply by Germany

to the United States response. There is no record of any

subsequent capture by German forces of any U.S. soldier or

marine armed with a shotgun or possessing shotgun ammunition,

or of Germany carrying out its threat against the U.S. soldiers

it captured earlier.

The position of the United States as to the legality of shotguns

remains unchanged from that stated in the opinion of Brigadier

General Ansell and the Secretary of State’s 28 September

1918 reply to the government of Germany.

Further Consideration of the Article 23(e)

Prohibition on Superfluous Injury

As the memorandum from which this article is derived is the

first legal review of the combat shotgun since the institution of

the Department of Defense program for such reviews,12 the

issue of whether a shotgun causes superfluous injury in violation

of Article 23(e) of the Annex to the 1907 Hague Convention

IV merits fresh examination.

Shotguns and shotgun cartridges are designed or chosen to

produce a desired projectile pattern at a specific distance. Their

military purpose is the simultaneous projection in the direction

of a close-range target of a number of projectiles in order to

increase the probability of striking the intended target. This

objective has been borne out in combat. British examination of

its Malaya experience determined that, to a range of thirty yards

(27.4 meters), the probability of hitting a man-sized target with

a shotgun was superior to that of all other weapons. The probability

of hitting the intended target with an assault rifle was

one in eleven. It was one in eight with a submachine gun firing

a five-round burst. Shotguns had a hit probability ratio twice as

good as rifles. A 1952 British study by the Commander of British

Security Forces, compiled from combat action reports, tests,

and other studies (including medical), reconfirmed the previous

finding that the shotgun was a highly-effective combat weapon

at ranges out to seventy-five yards (68.6 meters).13 Traveling at

velocities one-third to one-half that of a modern military rifle

bullet, with a poor ballistic coefficient (particularly when compared

to the good ballistic coefficient of modern military rifle

bullets), shotgun buckshot also diminish risk of injury from

projectile over-penetration (through walls or doors) to civilians

who are not taking a direct part in the hostilities or to friendly

force combatants during military operations in urban terrain.

These reasons confirm the military necessity for shotguns.

The second issue is whether wounding by a shotgun constitutes

superfluous injury, that is, that the wounds it causes are

disproportionate when compared to its military necessity or to

comparable wounding mechanisms to which a soldier may be

exposed on the battlefield. The proposed transition from a

pump (manually-operated slide) action to a semiautomatic

action poses no law of war issues, but simply follows the military

weapons evolution that began at the beginning of this century

with military pistols and rifles.

Whether a shotgun creates wounds that are excessive to its

military necessity will be addressed, in part, later in the discussion

of shotgun ammunition. In the general sense, it is

addressed here in terms of the fact that the use of a shotgun at

close range increases the probability that targeted enemy combatants

may be struck by more than a single projectile; the

present question is whether multiple wounding is contrary to

12. The program commenced with a DOD Instruction. U.S. DEP’T OF DEFENSE, INSTRUCTION 5500.15 (16 Oct. 1974). The successor to that DOD Instruction was

implemented in 1996. DOD DIR. 5000.1, supra note 2.

13. Swearengen, supra note 5, at 15.

OCTOBER 1997 THE ARMY LAWYER • DA PAM 27-50-299 21

the prohibition on superfluous injury. It is not, and State practice

is substantially to the contrary. Wounding by more than

one projectile is extremely common on the battlefield due to the

various lawful fragmentation munitions in use, such as antipersonnel

landmines, artillery and mortar fragments, canister

rounds, Claymore mines,14 and hand or rifle grenades, as well

as the extensive projection towards an enemy force of automatic

and semiautomatic small arms fire.

A corollary question is whether shotgun projectiles as such

inflict wounds greater than those imposed by comparable

wounding mechanisms in use on the modern battlefield.

Although it can result in fatal wounds, shotgun wounds appear

substantially less significant than those inflicted by weapons

such as artillery fragments, incendiary weapons, and antipersonnel

landmines.15

For the foregoing reasons, the possibility that an enemy

combatant may suffer multiple wounds as the result of the battlefield

use of a shotgun as such does not contravene the prohibition

on superfluous injury contained in Article 23(e) of the

Annex to the 1907 Hague Declaration IV.

Other Initiatives Relevant to the Question

In August 1992, the Government of Germany issued a new

law of war manual.16 Paragraph 407 of the manual states: "It is

prohibited to use bullets which expand or flatten easily in the

human body (e.g., dum-dum bullets) (Hague Decl 1899). This

also applies to the use of shotguns, since shot causes similar

suffering unjustified17 from the military point of view. . . ."18

The issue of whether shotgun buckshot violates the prohibition

contained in the Hague Declaration Concerning Expanding

Bullets of 29 July 189919 is addressed later in this article. Since

the German manual’s objection to the shotgun relies upon the

1899 Hague Declaration Concerning Expanding Bullets, it can

be assumed that the Government of Germany no longer regards

the combat use of shotguns as a violation of the general prohibition

of weapons causing superfluous injury, contained in Article

23(e) of the Annex to Hague Convention IV of 18 October

1907, as previously asserted in its diplomatic note of 23 September

1918.

As previously indicated, the United States developed the

M18 (later the M18A1) Claymore mine following the Korean

War. The M18A1 is an antipersonnel directed fragmentation

device containing 760 10.5-grain steel balls which, on detonation,

are dispersed in a sixty-degree arc extending fifty meters

at a maximum height of two meters in front of the mine. It is

employed with obstacles or on the approaches, forward edges,

flanks, and rear edges of protective minefields as close-in protection

against a dismounted infantry attack. Although initially

developed to address human-wave attacks, the Claymore can

be, and has been, employed as a perimeter-security weapon

against individual enemy combatants. The Claymore subsequently

has been manufactured by several nations, and it is in

the military inventory of many nations, including Germany.20

On 10 October 1980, following two years of negotiations,

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 adopted a convention bearing the same name

(UNCCW). Protocol II of the UNCCW regulates the employment

of landmines, booby traps, and other devices.

On 3 May 1996, the United Nations concluded its first

review conference for the UNCCW. A primary objective of

that review conference was the amendment of Protocol II of the

UNCCW to address the indiscriminate effect of the irresponsible

use of landmines. In the course of those negotiations, the

14. As indicated herein, a Claymore mine projects 760 steel fragments. In contrast, a No. 00 buckshot shotgun round projects nine. The comparable wounding effect

on an enemy combatant at the same distance is apparent.

15. See, e.g., William W. Tribby, MD, Examination of 1,000 American Casualties Killed in Italy, in WOUND BALLISTICS 437-471 (Wash., D.C.: Office of the Surgeon

General of the Army, 1962) [hereinafter WOUND BALLISTICS] (containing a narrative and photographs of the extent of battlefield wounds); see also Amended Protocol

II on Mines, Booby Traps, and Other Devices to the 1980 Conventional Weapons Convention, May 3, 1996, 1997 WL 49691 (restricting the employment of antipersonnel

landmines (APL) in order to protect civilians not taking a direct part in the hostilities). The Amended Protocol did not conclude that APL are illegal per se or

prohibit their use against enemy combatants. Id. Current proposals for a worldwide ban on APL have as their basis the indiscriminate effect of their irresponsible

and illegal use in a limited number of conflicts and the concomitant, adverse effect on the civilian population, rather than their effect in injuring combatants.

16. HUMANITARIAN LAW IN ARMED CONFLICTS—MANUAL (DSK VV207320067) (August 1992) [hereinafter MANUAL].

17. The German manual’s use of the term unjustified suffering is not explained. It is not a standard recognized in the law of war. It also apparently is a standard with

which the Government of Germany no longer agrees, given its endorsement of the legality of the Claymore mine, discussed infra, and German military possession of

shotguns and Claymore mines as part of its Table of Equipment.

18. MANUAL, supra note 16.

19. The Hague Declaration Concerning Expanding Bullets, July 29, 1899, 1 A.J.I.L. 157-59 (Supp.). See also THE LAWS OF ARMED CONFLICTS 109-111 (Dietrich

Schindler & Jiri Toman eds., 3d ed. 1988); DOCUMENTS ON THE LAWS OF WAR 39-42 (Adam Roberts & Richard Guelff eds., 2d ed. 1989).

20. Following reunification on 3 October 1990, the German Army redesignated the landmine as the DM-51 and retained the former East German Army MON-50,

which is the USSR copy of the U.S. M18A1 Claymore mine.

OCTOBER 1997 THE ARMY LAWYER • DA-PAM 27-50-299 22

States Parties drafted and adopted the following language in

paragraph 6, Article 5 of Protocol II:

Weapons to which this Article applies which

propel fragments in a horizontal arc of less

than 90 degrees and which are placed on or

above the ground may be used without the

measures provided for in subparagraph 2(a)

of this Article for a maximum period of 72

hours, if:

(a) they are located in immediate proximity

to the military unit that emplaced them; and

(b) the area is monitored by military personnel

to ensure the effective exclusion of civilians.

This provision was written expressly to exclude Claymore

mines from the requirements for the employment of antipersonnel

landmines when employed in the manner stated. It was

adopted by the consensus of the participating States Parties,21

including Germany. In promulgating this provision, the States

Parties expressly confirmed the legality of the Claymore mine,

which (as previously noted) performs like a shotgun, and with

far more devastating effect on enemy personnel. This acknowledgment

of the legality of the Claymore mine also serves to

reconfirm the legality of the potential multiple-wounding characteristic

of the shotgun.

Conclusion as to the First Legal Issue

As evidenced by the customary practice of nations and a

review of applicable treaty law, the possible multiple-wounding

characteristic of the combat shotgun does not violate the law of

war prohibition of superfluous injury.

Does the No. 00 Buckshot Projectile, or do Other

Smaller Buckshot Projectiles, Expand or Flatten Easily,

in Violation of the Hague Declaration Concerning

Expanding Bullets of 29 July 1899?

Description

Historically and currently, the primary antipersonnel round

used in a combat shotgun is loaded with nine No. 00 buckshot

(.33 inch diameter (.8382 cm.)) projectiles, with a propellant

charge of approximately twenty-six grains (1.68 grams) of

smokeless powder.22 The projectiles are lead and contain two

to four percent antimony.

Treaty law

In addition to the law of war prohibition on superfluous

injury, there exists the Hague Declaration Concerning Expanding

Bullets of 29 July 1899.23 This treaty prohibits the use in

international armed conflict "of bullets which expand or flatten

easily in the human body, such as bullets with a hard envelope

which does not entirely cover the core or is pierced with incisions."

The United States is not a party to this declaration, which

was intended to prohibit the so-called "dum-dum" projectile

manufactured as the Mark IV caliber .303 round in the late

Nineteenth Century by the British at its arsenal near Calcutta.

The United States has, however, taken the position that it will

adhere to the terms of the declaration to the extent that its application

is consistent with the object and purpose of the prohibition

on superfluous injury contained in Article 23(e) of the

Annex to the 1907 Hague Convention IV.

As discussed earlier, the shotgun, with its capability for

inflicting multiple wounds, does not violate the prohibition on

superfluous injury. A separate question is whether buckshot

projectiles violate the prohibition contained in the 1899 Hague

Declaration and, if so, whether the United States would be

legally obligated to refrain from their use.

Historical Statements

Comments on the legality of shotguns in manuals and opinions

of the armed services have supported the intent of the 1899

Hague Declaration. An Army field manual from 1956 states

that the prohibition on superfluous injury in Article 23(e) of the

Annex to the 1907 Hague Declaration and State usage "has . . .

established the illegality of . . . the scoring of the surface or the

filing off of the ends of the hard cases of bullets."24 In further

interpretation, a 1960 opinion of The Judge Advocate General

stated that:

21. The participating States Parties were: Australia, Argentina, Austria, Belarus, Belgium, Brazil, Bulgaria, Canada, China, Croatia, Cuba, Cyprus, the Czech Republic,

Denmark, Ecuador, Finland, France, Germany, Greece, Guatemala, Hungary, India, Ireland, Israel, Italy, Japan, Laos, Liechtenstein, Malta, Mexico, Mongolia,

the Netherlands, New Zealand, Norway, Pakistan, Romania, the Russian Federation, Slovakia, Slovenia, South Africa, Spain, Sweden, Switzerland, Ukraine, the

United Kingdom, the United States, and Uruguay.

22. U.S. DEP’T OF NAVY, NAVSEA SWO10-AD-GTP-010, TECHNICAL MANUAL, SMALL ARMS AND SPECIAL WARFARE AMMUNITION 4-13 (1 May 1995). The requirements

document for the Combat Shotgun also lists No. 7 1/2 shot and No. 9 shot, while the Navy M257 round contains No. 4 shot. Each is substantially smaller than No.

00 buckshot, and even less likely to deform on impact with soft tissue, hence the focus on the No. 00 buckshot round.

23. See supra note 19.

24. U.S. DEP’T OF ARMY, FIELD MANUAL 27-10, THE LAW OF ARMED CONFLICT, para. 34 (1956).

OCTOBER 1997 THE ARMY LAWYER • DA PAM 27-50-299 23

[T]he legality of the use of shotguns depends

upon the nature of the shot employed and its

effect on a soft target . . . . The use of shotgun

projectiles sufficiently jacketed to prevent

expansion or flattening upon penetration of a

human body and shot cartridges with chilled

shot25 regular in shape would not constitute

violations of the laws of war.26

This statement was reaffirmed in opinions of The Judge

Advocate General in 196127 and 1964,28 and is repeated in

Department of the Army Pamphlet (DA Pam) 27-161-2.29

While clearly stated, the statement apparently has resulted in

some misunderstanding. The language previously quoted from

the German law of war manual, which relied upon the language

of DA Pam 27-161-2, suggests that its author incorrectly

assumed that any No. 00 buck shot projectile would deform

easily,30 performing in a manner similar to the dum-dum bullet

prohibited by the 1899 Hague Declaration. The issue is how

No. 00 buckshot projectiles perform on impact in soft tissue and

whether their performance is consistent with the law of war

obligations of the United States, as enunciated in previous opinions

of The Judge Advocate General.

Characteristics and Wound Ballistic Performance

of 00 Buck Projectiles

A pure lead No. 00 buckshot projectile has not been used by

the United States military for more than three decades, if at all.

Tests conducted at Frankford Arsenal in 1962 to improve military

shotgun ammunition determined that soft lead shot

deformed during setback as the shell fired, flattening on one or

more sides. It suffered further flattening and deformation as it

accelerated down the barrel, resulting in a worsened ballistic

coefficient, erratic ballistic flight paths, increased dispersion,

poor pattern uniformity, and excessive velocity loss. The deformation

of soft lead projectiles also causes a reduction in the

penetration of soft tissue.31

Through the addition of two to four percent antimony, the

undesirable ballistics of pure lead projectiles are reduced, shot

dispersion is decreased, the shot is more evenly distributed

throughout the pattern, and the shot has a higher terminal velocity.

Long range accuracy and terminal performance are

enhanced by maintaining spherical shot shape. The question is

whether lead-and-antimony buckshot expands or flattens easily

in a manner inconsistent with the prohibition contained in the

1899 Hague Declaration and previous opinions of The Judge

Advocate General.

Wound ballistics has advanced substantially over the past

fifteen years, and a clearer picture exists today than may have

been possible previously. Wound ballistics tests conducted

over the past decade establish that lead-and-antimony buckshot

may deform mildly upon impact with soft tissue at close range,

but it does not expand or flatten easily. Some deformation is

likely with any lawful military rifle projectile, including fullmetal

jacketed bullets.32 Lead-and-antimony shotgun buckshot

(or shot) do not mushroom in the way the dum-dum bullet performed.

The prohibition in the 1899 Hague Declaration on projectiles

that "flatten or deform easily" constitutes acknowledgment

of the inevitability of some deformation, and it does not prohibit

projectiles that may deform mildly in limited circumstances.

Unlike the dum-dum bullet, the lead-and-antimony

No. 00 buckshot does not rely upon expansion to increase its

wounding effect and, as explained, has been developed to minimize

any change in its spherical shape to increase perfor-

25. There is no industry-wide or international law definition for "chilled shot." It commonly is used to refer to hardened shot. Shot are hardened by a lead-andantimony

mixture to reduce deformation.

26. Op. OTJAG, Army, JAGW 1960/1305 (4 Jan. 1961) [hereinafter JAGW 1960/1305].

27. Use of Shotguns in Conventional or Unconventional Warfare, Op. OTJAG, Army, JAGW 1961/1210 (11 Sept. 1961).

28. Op. OTJAG, Army, JAGW 1964/1333 (19 Aug. 1964).

29. U.S. DEP’T OF ARMY, PAM. 27-161-2, INTERNATIONAL LAW, VOLUME II (Oct. 1962).

30. This statement is based on the author’s correspondence with the author of the German manual. It also was determined that its author erroneously relied upon the

statement in Department of the Army Pamphlet 27-161-2 that "the United States Army does not now issue shotguns to troops for combat use" as evidence of lack of

justification for their combat use. See id.; JAGW 1960/1305, supra note 26. As United States forces were not engaged in armed conflict at the time that opinion was

prepared, the statement is a non sequitur. As the history of combat shotgun use indicates, shotguns are issued on a mission-specific, as-needed basis. Lack of issue

of shotguns in 1961 was not based upon an assumption by the United States that combat shotgun use was either unlawful or unjustified. In 1961, the United States

Army was performing deterrence missions in Europe and Korea against threats by the conventional forces of the Warsaw Pact and North Korea, respectively, and

shotguns would have been of limited effect. As the historical summary explains, United States forces were equipped with shotguns upon conventional force entry

into Vietnam in 1965.

31. See Swearengen, supra note 5, at 459; Gus Cotey, Jr., Number 1 Buckshot, The Number 1 Choice, WOUND BALLISTICS REV. 10-18 (1996); Duncan MacPherson,

Technical Comment on Buckshot Loads, WOUND BALLISTICS REV. 19-21 (1996).

32. See, e.g., Ashley W. Oughterson et al., Study of Wound Ballistics—Bouganville Campaign, in WOUND BALLISTICS, supra note 15, at 383, 396, figs. 190, 204; Martin

L. Fackler, MD, Wounding Patterns for Military Bullets, INT’L DEF. REV. 55-64 (Jan. 1989).

OCTOBER 1997 THE ARMY LAWYER • DA-PAM 27-50-299 24

mance, range, and target penetration. Wound profiles and

recovered buckshot confirm the nominal change in shape that

may occur. The change is insignificant, and a No. 00 buckshot

projectile is unlikely to result in a wound as severe as that

caused at the same range by, for example, 5.45 x 45mm AK-74;

5.56 x 45mm M855; 7.62 x 39mm AK-47; or 7.62 x 51mm fullmetal

jacket projectiles, today’s commonly-used military

small-caliber projectiles.33

Conclusion as to the Second Legal Issue

Lead-and-antimony buckshot does not "expand or flatten

easily," and therefore violates neither the 1899 Hague Declaration

nor the criteria for legality previously articulated in opinions

of The Judge Advocate General, United States Army.

Conclusion

The combat shotgun and its lead-and-antimony buckshot (or

shot) ammunition are consistent with the law of war obligations

of the United States.

The memorandum from which this article is derived was

coordinated with the offices of the Judge Advocates General of

the Air Force and Navy; Army General Counsel; the Staff

Judge Advocate to the Commandant of the Marine Corps; the

Office of the General Counsel, Department of Defense; and the

Office of the Legal Adviser, Department of State, each of whom

concurred with its analysis and conclusions.

33. See NATO, EMERGENCY WAR SURGERY 23-25, 29, 31 (2d United States revision, 1988) (providing wound profiles for projectiles); Cotey, supra note 31, at 14

(illustrating recovered buckshot).