*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.*

JUST SAY NO! THE SIrUS PROJECT: WELL-INTENTIONED, BUT UNNECESSARY AND
SUPERFLUOUS

[Major Donna Marie Verchio]{.smallcaps}[^1]

> *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)*[^2] *strenuously denounces the
> design and use of the laser. Founders of the SIrUS Project,*[^3]
> *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*[^4] *because it exceeds
> their theoretical health-based standards for determining the legality
> of weapons.* [^5]

**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.[^6]
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,[^7] 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.[^8] Why? Because it is the inherent responsibility of
sovereign nations, not non-governmental organizations (NGOs),[^9] 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
long-standing 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."[^10] In 1139 A.D., the Roman Catholic Church's Second
Lateran Council took the first known official action outlawing a
weapon.[^11] The Council outlawed the crossbow, calling it a weapon,
"hateful of God and unfit for Christians."[^12] 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.[^13] Centuries later, efforts were
made to outlaw the use of muskets, with no lasting success.[^14] The
situation at that point in history[^15] 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."[^16] Great
philosophers, like Jean Jacques Rousseau, continued to echo and expand
the thoughts of Grotius. In the late 18^th^ 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.[^17]

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."[^18] These thoughts
became part of the modern codifications of the law of war principle of
unnecessary suffering and superfluous injury[^19] found in the Lieber
Code[^20] and the St. Petersburg Declaration.[^21]

In 1863, the Lieber Code, during United States Civil War era, related
combatant suffering to the concept of military necessity.[^22] It
expressly prohibited, "the infliction of suffering for the sake of
suffering."[^23] 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."[^24]

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.[^25] However, their
principles were the basis for the Brussels Conference of 1874, and the
subsequent Hague Conventions of 1899 and 1907.[^26]

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."[^27] While an amended draft was
adopted, it never became a binding convention because it was not
ratified.[^28] However, the real importance of the Brussels Convention
was that it provided the basis for language incorporated into the
subsequent Hague Regulations.[^29]

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 . .
. ."[^30] 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,[^31]
asphyxiating gases,[^32] and expanding bullets (also known as dum-dum
bullets).[^33] The declarations were adopted on humanitarian
grounds.[^34] 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.[^35]

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."[^36] 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."[^37] 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.[^38] 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.[^39]

The preamble to the Hague Convention IV, also known as the Martens
Clause,[^40] 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.[^41]

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.[^42] From 1974 to 1977, a Swiss-hosted
multi-national 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.\"[^43]
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.[^44]

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.[^45] 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.[^46]

Unfortunately, the vast majority of state parties to Protocol I do not
comply with the Article 36 mandate.[^47] 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. [^48] The validity of the SIrUS Project was
debated.[^49] However, 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.[^50]

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.[^51] 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.[^52] 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.[^53] 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.[^54]

During the 1974-1977 Diplomatic Conference, an Ad Hoc Committee met to
study the conventional weapons legality issue.[^55] It reached no
conclusions, but prepared Resolution 22, "Follow-up regarding
Prohibitions or Restriction of Use of Certain Conventional
Weapons."[^56] 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.[^57] 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.[^58] On October
10, 1980, the Conference concluded with a treaty of the same name, and
three protocols.[^59]

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:[^60]

# A Decade of Debate: Results of the UN Conference

######### On the Legality of Certain Conventional Weapons, 1978-1980

**[Weapon or Purported Weapon]{.underline} [Result]{.underline}**

Cluster bombs No restriction.

"Plastic fragments" Protocol I, UNCCW, prohibiting certain

nondetectable fragments (a nonexistent

weapon).

Land mines, booby traps Protocol II, UNCCW, regulating each to

and other devices. 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 No restriction.

(lasers, particle beam weapons)

Flechettes No restriction.

An extensive, formal, and multi-national discussion of certain
conventional weapons produced a treaty with civilian population
protections.[^61] 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. [^62]

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]{.underline} [Result]{.underline}**

Mines, booby-traps and Protocol II substantially amended to

Other devices 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.[^63]
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 20-21, 2001.[^64] Topics
discussed included cluster munitions and other unexploded ordnance,
further improvements to the Amended Mines Protocol, and extending the
scope of the UNCCW to internal conflicts.[^65] 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.[^66] 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 the1980 UN
Conventional Weapons Convention.[^67] At these conferences, governments
meet to consider issues regarding certain conventional weapons.[^68]
Proposals are tabled to regulate or prohibit particular weapons based on
the international consensus of States Parties to the UNCCW.[^69] 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.[^70] However, other groups and nations wish the UN could go
farther with these conferences.[^71] 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.[^72] Often, these
conflicts are where the greatest suffering occurs. This issue will be
considered at the second UNCCW Review Conference.[^73]

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.[^74] 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.[^75] One of these
articles, originally a paper presented at an ICRC-hosted symposium,
entitled, *The Medical Profession and the Effects of Weapons,*[^76]
appears to be the genesis of the SIrUS Project*.*[^77]

*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."[^78] 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."[^79] 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."[^80]
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."[^81] The SIrUS Project's proposed yardstick was, "the
effects of weapons on health."[^82] The Project used the ICRC's field
hospital database to create the Project's health-effects criteria.[^83]

The ICRC database purportedly contains information on 26,636
"war-wounded" admitted to ICRC field hospitals.[^84] 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.[^85]

Undeterred, and claiming it to be "the best index of injury and
suffering available,"[^86] 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." [^87] 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.[^88]

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."[^89] 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."[^90] 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.[^91]

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.[^92] 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.[^93]

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

**Weapons (by effect on health)**[^94]

## Health effects seen in recent conflicts Health effects not commonly seen

### 

###  Grenades Electromagnetic

###  Mortars Napalm/Chemical weapons Bombs Mines Lasers/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.[^95] Their
use against combatants is not prohibited, and the international
community has not concluded that they cause unnecessary suffering or
superfluous injury of combatants.[^96] Also, notwithstanding the lack of
recent use of incendiary weapons, burn injuries are common to war, and
there is extensive medical data on them.[^97]

All mines have not been prohibited, and anti-personnel mines have been
regulated (or, per the Ottawa Convention, prohibited).[^98] This
regulation arose due to irresponsible use causing indiscriminate effects
in some conflicts.[^99] The regulation did not occur because the
international community concluded that they cause unnecessary suffering
or superfluous injury to combatants.[^100] There is also a massive
amount of medical data on mine injuries. These injuries are nothing if
not "commonly seen."[^101]

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.[^102] 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.[^103] There is no
known data on either electromagnetic or acoustic weapons because no such
weapons have been fielded.[^104]

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.[^105] 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.[^106] 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.[^107] SIrUS
is also targeting blinding laser weapons and all classes of non-lethal
weapons.[^108]

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.[^109]

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.[^110] 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.[^111] These types of wounds, usually
fatal, can be found described in current military medical
literature.[^112] 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.[^113] 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.[^114] 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.[^115]

*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.[^116]
The mortality criterion is designed to encompass weapons that cause
death in the field, as well as death following treatment in a medical
facility.[^117] 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.[^118] 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."[^119] 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."[^120]

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.[^121] The
Marines suffered thirty-eight killed and fifty-five wounded.[^122] 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.[^123]

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)[^124]

##### 

#####  [Force]{.underline} [Wounded]{.underline} [Killed]{.underline} [% Killed to Wounded]{.underline}

##### 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-à-vis* wounded in action.[^125] Percentages of killed in action
also are higher for forces engaged in offensive, rather than defensive,
operations.[^126] 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.[^127] 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.[^128] 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.[^129]

###### Because victims usually suffered multiple wounds, the leading fatality producing mechanism in World War II was the machinegun.[^130] 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.[^131] This criterion defines any weapon as
unlawful, which, without targeting a particular part of the body, simply
inflicts large wounds.[^132] 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."[^133]

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."[^134] 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.[^135] 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.[^136] 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.[^137]
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,[^138] 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.[^139] While the error
was acknowledged in the ICRC meeting report, it was not corrected.[^140]

*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.[^141] 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.[^142]

####### 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."[^143] 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.[^144]

SIrUS acknowledges this view is a reversal of current thinking.[^145]
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."[^146]

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.[^147] 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.[^148] The prohibition of dum-dum
bullets and blinding lasers weapons exposes a fundamental defect in this
part of international law.[^149] 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.[^150]

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.[^151] 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.[^152] These wounds do not
always reflect the multiple-source injuries found on the modern
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.[^153] This is hardly a reflection of modern warfare. Accordingly,
the database fails to reflect either the wounds from actual warfare or
the employment of modern medical facilities in a conflict.

The ICRC casualties and wound criteria do not account for the
synergistic effect of combined arms employment on the modern
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."[^154] He further notes that, without
a valid rate of killed in action, it is impossible to know the true
effect of a particular weapon.[^155] 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.[^156]

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.[^157] 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.[^158]
Although some medical associations had endorsed the SIrUS Project,[^159]
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.[^160] The invited experts challenged the
Project's underlying assumption that the "twentieth century has seen
enormous human suffering caused by \[unlawful\] weapons."[^161] 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.[^162] 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,[^163] are meeting that obligation.[^164] As
previously stated, of the 15~~4~~ 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.[^165]

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.[^166] Several other countries agreed and stated that the
ICRC's weapon effort is a misplaced priority.[^167]

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.[^168]
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.[^169] However, some nations
note the Project could potentially provide useful information to the
medical community for treatment of war wounds in general.[^170]
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.[^171] At the same time, it promulgated its first
instruction implementing the weapons review program.[^172] That
instruction was further implemented through separate regulations in each
of the three military departments.[^173] 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.[^174] Consequently, in 1996, the
requirement was incorporated into the DoD Acquisition Directive.[^175]
Also in 1996, the DoD instituted its program for the development of
non-lethal (or "less lethal") weapons.[^176] 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.[^177] The U.S. military acquires a weapon or
munition to meet an expressed, detailed, stated requirement.[^178]
Comprehensive testing and evaluation to ensure that the weapon or
munition meets performance specifications set forth in the operational
requirement precede acquisition.[^179] 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.[^180]

It is the program manager's responsibility to comply with DoD
directives.[^181] Failure to comply can result in termination of the
particular program,[^182] 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.[^183] 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.[^184] It must then be coordinated with its relevant
counterpart offices.[^185] 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.[^186]

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).[^187] 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.[^188]

Not all reviews require the advice of outside experts. Some examples
include reviews of an improved artillery system[^189] or an anti tank
system.[^190] 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 tungsten-cored projectile.[^191]

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). [^192] 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.[^193] 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."[^194] 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.[^195]

*c*. *What is Subject to a Weapons Review?*

All weapons and weapons systems require review. Weapon platforms,
however, are generally excluded from review.[^196] 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.\"[^197] 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."[^198] 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.[^199] 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.[^200]

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.[^201]

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.[^202]

*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.[^203]

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.[^204]

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.[^205]

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.[^206]

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.[^207]

*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.[^208] 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.[^209]

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,[^210] 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.[^211] The ICRC has always had a close and
special relationship with international humanitarian law.[^212] It
reported on the problems it has encountered, and on that basis, has made
practical proposals for the improvement of international humanitarian
law.[^213] 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."[^214] 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.[^215]

Article 35(2) does not define "unnecessary suffering" or "superfluous
injury."[^216] Article 36 of Protocol I does not regulate what criteria
or norms should be applied when reviewing new weapons.[^217] 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.[^218] 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.[^219] 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.[^220]
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.[^221] 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.[^222] 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.*[^223]

*(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.*[^224]

[^1]: ^^ *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.*

[^2]: 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).

[^3]: 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.

[^4]: 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
    (]{.smallcaps}Yves Sandoz et al. eds., 1987) \[hereinafter
    [Commentary on Protocol I\]]{.smallcaps} ("\[I\]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 Meyrowitz, *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]{.smallcaps} 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*.

[^5]: R[obin M. Coupland, International Committee of the Red Cross, The
    SIrUS Project: Towards a determination of which weapons cause
    "superfluous injury or unnecessary suffering" (]{.smallcaps}November
    10, 1997) \[hereinafter [Coupland, The SIrUS Project\]
    (]{.smallcaps}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]{.smallcaps}, [The SIrUS
    Project and Reviewing the Legality of New Weapons]{.smallcaps}, 2000
    \[hereinafter [ICRC, The SIrUS Project]{.smallcaps}\] (only slightly
    revising, [Coupland, The SIrUS Project,]{.smallcaps}
    *supra*[).]{.smallcaps}

[^6]: Note that the ICRC, [The SIrUS Project]{.smallcaps}, *supra* note
    Error: Reference source not found, is a slight revision of
    [Coupland, The SIrUS Project,]{.smallcaps} 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,]{.smallcaps} 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,]{.smallcaps} [Summary Report, Expert Meeting on Legal Reviews
    of Weapons and the SIrUS Project]{.smallcaps} 5 (2001) \[hereinafter
    [ICRC SIrUS 2001 Summary Report]{.smallcaps}\]. 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).

[^7]: *See* *generally* [U.S. Dep't of Defense, Dir. 5100.77, DoD Law of
    War Program,]{.smallcaps} para. 4.1 (Dec. 9, 1998) \[hereinafter
    [DoD Dir. 5100.77\] (]{.smallcaps}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]{.smallcaps} para. 4.7.3.1.4 (Oct. 23,
    2000) \[hereinafter [DoD Instr. 5000.2\] (]{.smallcaps}appointing
    the general counsel and alternatively the service judge advocate
    general responsible for reviewing the legality of weapons under
    international law).

[^8]: Protocol I, article 36, *supra* note Error: Reference source not
    found, 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."

[^9]: 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 100-20, Military Operations In Low
    Intensity Conflict]{.smallcaps}, 1-111 (05 Dec. 1990) *at*
    http://www.adtdl.army.mil/atdls.htm. The ICRC is an NGO.

[^10]: 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 (]{.smallcaps}1973).

[^11]: *Id.* While there is some evidence of the custom existing
    earlier, this was the first official action. *Id*.

[^12]: *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]{.smallcaps}. 306, 318 (1967)).

[^13]: [Sir Ralph Payne-Gallwey]{.smallcaps}, [The Crossbow]{.smallcaps}
    3-4, 46-48 (1958).

[^14]: Harris, s*upra* note Error: Reference source not found, at 9
    (citing C. [Fenwick]{.smallcaps}, [International Law]{.smallcaps}
    667 (4th ed. 1965)).

[^15]: M. W. [Royce]{.smallcaps}, [La Protection des Populations Civiles
    Contre les Bombardments]{.smallcaps} 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).

[^16]: [Hugo Grotius]{.smallcaps}, [The Rights of War and Peace:
    Including the law of nature and nations]{.smallcaps} 364 (A.C.
    Campbell trans., 1979).

[^17]: [Hilaire McCoubrey & Nigel D. White]{.smallcaps}, [International
    Law and Armed Conflict]{.smallcaps} 215 (1992).

[^18]: *Id*.

[^19]: *Id.*

[^20]: *Instructions for the Government of Armies of the United States
    in the Field,* General Order No. 100, 24 April 1863[,
    \[]{.smallcaps}hereinafter The Lieber Code\][, The Laws of Armed
    Conflicts. A collection of Conventions, Resolutions and Other
    Documents]{.smallcaps} 3 [(]{.smallcaps}Dietrich Schindler & Jiri
    Toman eds., [1988) \[]{.smallcaps}hereinafter Schindler &
    Toman\][.]{.smallcaps}

[^21]: [Declaration Renouncing the Use, in Time of War, of Explosive
    Projectiles under 400 Grammes Weight]{.smallcaps}, Dec. 11, 1868,
    (1907 Supp.) [1 Am. J. Int'l L. 95]{.smallcaps} \[hereinafter The
    St. Petersburg Declaration of 1868\]. The St. Petersburg Declaration
    of 1868 is the first formal agreement prohibiting the use of certain
    weapons in war. Schindler & Toman, *supra* note Error: Reference
    source not found, 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 suffering 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, determined
    (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
    author) (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*.

[^22]: The Lieber Code, *supra* note Error: Reference source not found,
    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 modern 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.

[^23]: *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.

[^24]: St. Petersburg Declaration of 1868, *supra* note Error: Reference
    source not found, 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.

[^25]: Schindler & Toman, *supra* note Error: Reference source not
    found, at 25-26.

[^26]: *Id*.

[^27]: *Id*. at 25.

[^28]: *Id*.

[^29]: *Id*. at 26.

[^30]: Fritz Kalshoven, *Arms*, *Armaments and International Law*, 191
    [Hague Recueil des Cours 213 (]{.smallcaps}1985).

[^31]: Schindler and Toman, *supra* note Error: Reference source not
    found, 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*.; s*ee also* Donald Cameron Watt,
    *Restraints on War in the Air before 1945*, *in* [Restraints on
    War]{.smallcaps} 60-61 (Michael Howard, ed.[,]{.smallcaps} 1979); W.
    Hays Parks, *Air War and the Law of War,* 32 [A.F.L. Rev. 1
    (]{.smallcaps}1990).

[^32]: Schindler and Toman, *supra* note Error: Reference source not
    found, 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.*

[^33]: *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*.; s*ee 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™ Bullet (19 May 2000) at 4-5 \[hereinafter
    MatchKing Review\] (on file with author).

[^34]: Kalshoven, *supra* note Error: Reference source not found, at
    216.

[^35]: *See* Schindler and Toman, *supra* note Error: Reference source
    not found, at 63; *United States v. Krupp et al.*, IX [Int'l Mil.
    Trib.]{.smallcaps} 1340 (1948) \[hereinafter Krupp\]. (noting that
    the Hague IV Convention is a slightly revised version of the 1899
    Hague Convention II).

[^36]: Hague Convention No. IV, *supra* note Error: Reference source not
    found, art. 22.

[^37]: *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.

[^38]: *Id.*

[^39]: Krupp*, supra* note Error: Reference source not found.

[^40]: Hague Convention IV, *supra* note Error: Reference source not
    found, preamble. Martens was the name of the Russian negotiator at
    the Hague Conventions.

[^41]: *Id.* (mentioning for the first time public opinion as a means by
    which to evaluate unnecessary suffering in warfare).

[^42]: *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 \[hereinafter
    GC\].

[^43]: Protocol I, *supra* note Error: Reference source not found, 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, 100^th^ Congress, 1^st^ Session (1987),
    *reprinted in* 26 I.L.M. 561. Additional Protocol II of 1977 is
    concerned 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.

[^44]: [Commentary on Protocol I,]{.smallcaps} *supra* note Error:
    Reference source not found. 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.*

[^45]: [U.S. Dep't of Defense, Dir. 5100.77, DoD Law of War
    Program,]{.smallcaps} para. 4.1 (9 Dec. 1979) [(]{.smallcaps}"\[I\]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,]{.smallcaps} *supra* note [Error: Reference
    source not found,]{.smallcaps} which came out in
    [1998)]{.smallcaps}. The 1979 Directive codified the U.S. weapons
    practice, which predated Protocol I.

[^46]: MatchKing Review, *supra* note Error: Reference source not found,
    at 2.

[^47]: 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, 10-11 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) \[hereinafter Parks Interview IV\].

[^48]: [ICRC SIrUS 2001 Summary Report]{.smallcaps}, *supra* note Error:
    Reference source not found.

[^49]: *Id*.

[^50]: *Id*.

[^51]: *See generally* ICRC *supra* note *Error: Reference source not
    found.*

[^52]: ICRC, [Weapons That May Cause Unnecessary Suffering or Have
    Indiscriminate Effects]{.smallcaps} (Geneva, 1973); ICRC,
    [Conference of Government Experts on the Use of Certain Conventional
    Weapons]{.smallcaps}, Lucerne, 24 September to October 18, 1974
    (Geneva, 1975); and ICRC, [Conference of Government Experts on the
    Use of Certain Conventional Weapons]{.smallcaps}, 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]{.smallcaps}, [Digest
    of United States Practice in International Law]{.smallcaps} 707-09
    (1974).

[^53]: Parks Interview I, *supra* note Error: Reference source not
    found.

[^54]: [Michael Bothe, Karl Josef Partsch & Waldemar A.
    Solf]{.smallcaps}, [New Rules for Victims of Armed
    Conflicts]{.smallcaps} 197 (1982).

[^55]: [Commentary on Protoco]{.smallcaps}l I, *supra* note Error:
    Reference source not found.

[^56]: *Id*.

[^57]: *Id*.

[^58]: *Id*. at 402-03.

[^59]: *Id*. For a discussion of the 1980 treaty, see [Yves
    Sandoz]{.smallcaps},, [Prohibitions or Restrictions on the Use of
    Certain Conventional Weapons 3-33]{.smallcaps} (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.]{.smallcaps}, 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).

[^60]: *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 may 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).

[^61]: W. J. Fenrick, *The Conventional Weapons Convention: A Modest but
    Useful Treaty* 279 [Int'l Rev. Red Cross]{.smallcaps} 498-509
    (1990).

[^62]: 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*[,]{.smallcaps} [279 Int'l Rev. Red Cross]{.smallcaps}
    510-520 (1990); A.P.V. Rogers*, Mines, Booby Traps and Other
    Devices* [279 Int'l Rev. Red Cross]{.smallcaps} 521-534 (1990); and
    W. Hays Parks*, The Protocol on Incendiary Weapons* [279 Int'l Rev.
    Red Cross]{.smallcaps} 535-550 (1990).

[^63]: Parks Interview I, *supra* note Error: Reference source not
    found.

[^64]: 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) \[hereinafter Parks Interview
    II\].

[^65]: Personal observation of author, who attended the February 20-2,
    2001 meeting as an observer.

[^66]: Parks Interview II, *supra* note Error: Reference source not
    found.

[^67]: *Id*.

[^68]: *Id*.

[^69]: *Id*.

[^70]: *Id*.

[^71]: *Id*.

[^72]: *Id*.

[^73]: 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).

[^74]: The origins of the more activist ICRC approach began at the end
    of the Cold War. *See* [Louise Doswald-Beck and Gerald C.
    Cauderay]{.smallcaps}*,* [The Development of New Anti-personnel
    Weapons (]{.smallcaps}1990).

[^75]: *See generally* Robin M. Coupland, *The Effect of Weapons on
    Health*, 347 [The Lancet 450-51 (]{.smallcaps}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)
    \[]{.smallcaps}hereinafter *Abhorrent Weapons*\].

[^76]: *See* [International Committee of the Red Cross]{.smallcaps},
    Report on [The Medical Profession and the Effects of Weapons: the
    Symposium]{.smallcaps}, Geneva (1996) \[hereinafter [Symposium
    Report]{.smallcaps}\] (noting the symposium was held in Montreux,
    Switzerland, March 8-10, 1996).

[^77]: Coupland is also the editor of the SIrUS Project. [Coupland, The
    SIrUS Project,]{.smallcaps} *supra* note Error: Reference source not
    found, at 5.

[^78]: *See* Robin M. Coupland, *The Effects of Weapons: Defining
    Superfluous Injury and Unnecessary Suffering*, 3 [Med. & Glob. Surv.
    1]{.smallcaps} (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?*).

[^79]: [Coupland, the SIrUS Project,]{.smallcaps} *supra* note Error:
    Reference source not found, at 5.

[^80]: *Id.* at 14.

[^81]: *Id.* at 12.

[^82]: *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).

[^83]: *Id*. at 7.

[^84]: *Id*.

[^85]: *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]{.smallcaps} (Jan.
    24, 2001) \[hereinafter [FMOD Document]{.smallcaps}\]; [The
    Government of Finland, Comments of the Government of Finland to the
    Document "the SIrUS Project and Reviewing the Legality of
    Weapons"]{.smallcaps} (Sept. 13, 2000) \[hereinafter [Finland
    Document]{.smallcaps}\]; [The United Kingdom Proliferation & Arms
    Control Secretariat, Project SIrUS---A Critique]{.smallcaps} (Dec.
    18, 2000) \[hereinafter [UK Document]{.smallcaps}\]; [The Swedish
    Ministry of Foreign Affairs, The Consultation Process on the SIrUS
    Project]{.smallcaps} (Oct. 25, 2000) \[hereinafter [Swedish
    Document]{.smallcaps}\]; [The Permanent Representative of the United
    States of America to the UN and Other International Organizations,
    Comments on the SIrUS Project]{.smallcaps} (Jan. 11, 2001)
    \[hereinafter [United States Document]{.smallcaps}\]. These
    governmental documents were prepared in advance of the January
    29-31, 2001, Jongny sur Vevey 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*.; s*ee also* *Jongny sur Vevey
    Memorandum*, *supra* note Error: Reference source not found, 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*.

[^86]: [Coupland, the SIrUS Project,]{.smallcaps} *supra* note Error:
    Reference source not found, at 22 (arguably the best database
    because it is the only database available).

[^87]: *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' anti-personnel 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*.

[^88]: *Id*.

[^89]: *Id*. at 22.

[^90]: *Id*. at 8.

[^91]: [ICRC, The SIrUS Project]{.smallcaps}, *supra* note Error:
    Reference source not found, at 2.

[^92]: *See* [Coupland, The SirUS Project]{.smallcaps}, *supra* note
    Error: Reference source not found.

[^93]: *Id*. at 3.

[^94]: Parks Interview IV, *supra* note Error: Reference source not
    found. 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*.

[^95]: Interview with W. Hays Parks, Special Assistant to The Judge
    Advocate General of the Army, at Rosslyn, Va. (Mar. 5, 2001)
    \[hereinafter Parks Interview III\].

[^96]: For a history of the Incendiaries Protocol (Protocol III, UNCCW),
    see Parks, *supra* note Error: Reference source not found.

[^97]: Parks, *supra* note Error: Reference source not found, at 539.

[^98]: Rogers, *supra* note Error: Reference source not found, at 521

[^99]: Parks Interview III, *supra* note Error: Reference source not
    found.

[^100]: *Id*.

[^101]: *Id*.

[^102]: W. Hays Parks, *Memorandum of Law:* *Trauvaux Preparatoires and
    Legal Analysis of Blinding Laser Weapons Protocol,* [Army
    Law.]{.smallcaps} June [1997,]{.smallcaps} at [33-41.]{.smallcaps}

[^103]: Parks Interview III, *supra* note Error: Reference source not
    found.

[^104]: *Id*.

[^105]: [Coupland, the SIrUS Project,]{.smallcaps} *supra* note Error:
    Reference source not found, at 22. Note that this information comes
    from [Coupland, the SIrUS Project,]{.smallcaps} not from the [ICRC,
    The SIrUS Project]{.smallcaps}. *Id*.

[^106]: *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.

[^107]: *Id.* (distinguishing normal foreseeable effects such as fear
    and stress from weapons designed to produce a abnormal effect such
    as confusion, calm, or disorientation).

[^108]: *Id.* at 25-26.

[^109]: *Jongny sur Vevey Memorandum*, *supra* note Error: Reference
    source not found.

[^110]: [Coupland, the SIrUS Project,]{.smallcaps} *supra* note Error:
    Reference source not found, at 23 (acknowledging that all weapons
    produce fear and stress---these reactions are neither specific nor
    abnormal).

[^111]: *See* [Mark Bowden]{.smallcaps}, [Black Hawk Down]{.smallcaps}
    192 (1999).

[^112]: *See* [Major James C. Beyer, MC, USA]{.smallcaps}, [Wound
    Ballistics]{.smallcaps} 410-11, 452-53, 456, 459-60, 468-69 (1962).

[^113]: *See* [Derrick Harrison]{.smallcaps}, [These Men Are Dangerous
    129]{.smallcaps} (1988); *see also* [John Lewes]{.smallcaps}, [Jock
    Lewes -- Co-founder of the SAS]{.smallcaps} 240-241, 247 (2000).

[^114]: [Coupland, the SIrUS Project,]{.smallcaps} *supra* note Error:
    Reference source not found, at 24.

[^115]: *See* Parks, *supra* note Error: Reference source not found, at
    550.

[^116]: [Coupland, the SIrUS Project,]{.smallcaps} *supra* note Error:
    Reference source not found, at 24.

[^117]: *Id*.

[^118]: [Coupland, The SIrUS Project,]{.smallcaps} *supra* note Error:
    Reference source not found, 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 the 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.*

[^119]: *Id*. at 25.

[^120]: *Id*.

[^121]: [Joseph H. Alexander]{.smallcaps}, [Edson's
    Raiders]{.smallcaps}---[The 1^st^ Marine Raider Battalion in World
    War II]{.smallcaps} 102 (2001).

[^122]: *Id*.

[^123]: *Id.*

[^124]: *See* [Samuel Milner]{.smallcaps}, [Victory in
    Papua]{.smallcaps} 372 (1957); *see also* [Raymond
    Paull,]{.smallcaps} [Retreat from Kokoda]{.smallcaps} 229 (1958).

[^125]: [Beyer]{.smallcaps}, *supra* note Error: Reference source not
    found, at 271, and tbl. 52.

[^126]: *Id*. at 278.

[^127]: *Id.* at 308 at fig. 177 (depicting Japanese soldiers killed on
    the perimeter of Company F, 129^th^ Infantry, 37^th^ Division, in
    the World War II Bougainville Campaign).

[^128]: [Beyer]{.smallcaps}, *supra* note Error: Reference source not
    found, at 258, 314-15.

[^129]: Parks Interview III, *supra* note Error: Reference source not
    found.

[^130]: *Id*. at 271-72, 325, 379.

[^131]: [Coupland, the SIrUS Project,]{.smallcaps} *supra* note Error:
    Reference source not found, at 24 (pronouncing Grade 3 as the
    threshold for defining injury as "unnecessary suffering or
    superfluous injury").

[^132]: *Id*.

[^133]: *Id*.

[^134]: *See* [Duncan MacPherson]{.smallcaps}, [Bullet Penetration:
    Modeling the Dynamics and the Incapacitation Resulting from Wound
    Trauma 7]{.smallcaps} (1994).

[^135]: [Coupland, the SIrUS Project,]{.smallcaps} *supra* note Error:
    Reference source not found, at 24.

[^136]: Parks Interview I, *supra* note Error: Reference source not
    found.

[^137]: *See* [Emergency War Surgery: Second United States Revision of
    the Emergency War Surgery NATO Handbook]{.smallcaps} 17 (Thomas E.
    Bowen & Ronald F. Bellamy, eds., 1988).

[^138]: [Coupland, the SIrUS Project]{.smallcaps}, *supra* note Error:
    Reference source not found, at 24 (asserting that conventional
    weapons produce less than 10 percent Grade 3 wounds).

[^139]: *ICRC SIrUS 2001 Summary Report*, *supra* note Error: Reference
    source not found, 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 Error: Reference source not found
    (Mr. Parks participated in the meeting.).

[^140]: Parks Interview III, *supra* note Error: Reference source not
    found.

[^141]: [Coupland, the SIrUS Project,]{.smallcaps} *supra* note Error:
    Reference source not found, at 25.

[^142]: Parks Interview III, *supra* note Error: Reference source not
    found.

[^143]: [Coupland, the SIrUS Project,]{.smallcaps} *supra* note Error:
    Reference source not found, at 22.

[^144]: *Id.* at 7.

[^145]: *Id*.

[^146]: *Id*. at 14.

[^147]: Parks Interview III, *supra* note Error: Reference source not
    found.

[^148]: 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 Error: Reference
    source not found, at 5 (providing a brief history of the ICRC's
    failed efforts to obtain a mandate).

[^149]: *Id*.

[^150]: *See generally* The St. Petersburg Declaration of 1868, *supra*
    note Error: Reference source not found, The Hague Convention No. IV,
    Protocol I, [Commentary on Protocol I,]{.smallcaps} *supra* note
    Error: Reference source not found; Meyrowitz Article, *supra* note
    Error: Reference source not found.

[^151]: *See* *supra* note Error: Reference source not found.

[^152]: *Id*.

[^153]: *Id*.

[^154]: Andrew Koch, *Should War Be Hell?,* [Jane's Defense
    Weekly]{.smallcaps}, 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).

[^155]: *Id*. at 25.

[^156]: Trip Report 19 May 1999, *supra* note Error: Reference source
    not found, at 7.

[^157]: [Coupland, The SIrUS Project,]{.smallcaps} *supra* note Error:
    Reference source not found, at 26-27.

[^158]: Trip Report 19 May 1999, *supra* note Error: Reference source
    not found, at 7.

[^159]: *ICRC, The SIrUS Project*, *supra* note Error: Reference source
    not found, at Annex 2.

[^160]: Trip Report 19 May 1999, *supra* note Error: Reference source
    not found, 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).

[^161]: [Coupland, The SIrUS Project,]{.smallcaps} *supra* note Error:
    Reference source not found, at 7.

[^162]: Trip Report 19 May 1999, *supra* note Error: Reference source
    not found, at 1. *See* *Massive Evacuation from Borneo Set*, [Wash.
    Times]{.smallcaps}, Feb. 24, 2001, at A-7. Daniel Cooney, *Thousands
    Flood Ship to Flee Borneo After Ethnic Attacks*, [The Wash.
    Times]{.smallcaps}, Feb. 25, 2001, at A-8.

[^163]: Protocol I, art. 36, *supra* note Error: Reference source not
    found.

[^164]: Trip Report 19 May 1999, *supra* note Error: Reference source
    not found, at 4.

[^165]: *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*.

[^166]: *Id*. at 4.

[^167]: *Id.* at 2.

[^168]: *Jongny sur Vevey Memorandum*, *supra* note Error: Reference
    source not found, at 2.

[^169]: See the [Finland, FMOD, UK, Swedish;]{.smallcaps} and [United
    States Document,]{.smallcaps} all *supra* note Error: Reference
    source not found.

[^170]: *Id*.

[^171]: Parks Interview I, *supra* note Error: Reference source not
    found.

[^172]: *See* [U.S. Dep't of Defense Instr. 5500.15, Review of Legality
    of Weapons Under International Law,]{.smallcaps} (Oct. 16, 1974)
    \[hereinafter [DoD Instr. 5500.15\].]{.smallcaps}

[^173]: *See* [U.S. Dep't of Air Force Instr. 51-402, Weapons Review
    Defense, (]{.smallcaps}May 13, 1994) \[hereinafter AFI 51-402\];
    [U.S. Dep't of Army, Reg. 27-53, Legal Services: Review of Legality
    of Weapons Under International Law, (]{.smallcaps}Jan.
    [1,]{.smallcaps} 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, (]{.smallcaps}Dec. [6,]{.smallcaps} 1996) \[hereinafter
    S[ecnav Instr 5000.2b\].]{.smallcaps}

[^174]: Parks Interview I, *supra* note Error: Reference source not
    found.

[^175]: *See* [DoD Dir. 5100.77,]{.smallcaps} *supra,* note Error:
    Reference source not found, 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,]{.smallcaps} (15 Mar.
    1996) \[hereinafter [DoD Dir. 5000.1\]]{.smallcaps} replaced by [DoD
    Dir 5000.1, Defense Acquisition]{.smallcaps} (23 Oct. 2000)
    \[hereinafter DIR. 5000.1\]. Note that the language referenced in
    [DoD Dir. 5100.77]{.smallcaps} is currently found in [U.S. Dep't of
    Defense, Ins. 5000.2, Defense Acquisition]{.smallcaps} (23 Oct.
    2000) \[hereinafter [DoD Instr. 5000.2\]]{.smallcaps}
    para[.]{.smallcaps} 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.

[^176]: *See* [U.S. Dep't of Defense, Dir. 3000.3, Policy for Non Lethal
    Weapons,]{.smallcaps}

    (Jul.9, 1996) \[hereinafter [DoD Dir. 3000.3\].]{.smallcaps}

[^177]: [DoD Instr. 5000.2,]{.smallcaps} *supra* note Error: Reference
    source not found[.]{.smallcaps}

[^178]: *Id*. at para. 1.1.

[^179]: *Id*. at para. 1.3.

[^180]: *Id*. at para. E2.1.17.

[^181]: *Id*.

[^182]: *Id*.

[^183]: *Id.* at para*.* 4.7.3.1.4.

[^184]: *See* [U.S. Dep't of Defense, Dir. 5100.77, DoD Law of War
    Program,]{.smallcaps} *supra* note [Error: Reference source not
    found]{.smallcaps} at para[. 4.1.]{.smallcaps} 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) \[hereinafter
    Multipurpose Projectile Review\].

[^185]: *See* [U.S. Dep't of Defense, Dir. 5100.77, DoD Law of War
    Program,]{.smallcaps} *supra* note [Error: Reference source not
    found,]{.smallcaps} at para[. 4.1.]{.smallcaps}

[^186]: *Id*.

[^187]: *Id*.

[^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: Lead-free,
    Tungsten Cor 5.56mm Ammunition (15 Mar. 1999) \[hereinafter Tungsten
    Core 5.56mm Review\] (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: Crusader
    Weapon System (12 Jul. 1999) \[hereinafter Crusader Weapon System
    Review\] (on file with author).

[^190]: 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).

[^191]: Tungsten Core 5.56mm Review, *supra* note Error: Reference
    source not found.

[^192]: Conventional Weapons of 1980, *supra* note Error: Reference
    source not found, 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).

[^193]: 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) .

[^194]: [DoD Instr. 5000.2,]{.smallcaps} *supra* note Error: Reference
    source not found, at para. 4.5.1

[^195]: *Id*. at para. 4.6.1.4.

[^196]: *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)
    \[]{.smallcaps}hereinafter [AFPD 51-4\] (]{.smallcaps}defining the
    term "weapon" for the purpose of the policy directive and expressly
    excluding ["]{.smallcaps}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.

[^197]: [DoD Instr. 5000.2,]{.smallcaps} *supra* note Error: Reference
    source not found.

[^198]: The Hague Convention No. IV, *supra* note Error: Reference
    source not found.

[^199]: Protocol I, *supra* note Error: Reference source not found.

[^200]: Parks Interview I, *supra* note Error: Reference source not
    found.

[^201]: *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.*

[^202]: 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.

[^203]: Parks Interview I, *supra* note Error: Reference source not
    found.

[^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, Selectable Lightweight
    Attack Munition (SLAM) (2 May 1997) \[hereinafter Army SLAM Review\]
    (on file with author).

[^205]: 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).

[^206]: 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).

[^207]: Parks Interview III, *supra* note Error: Reference source not
    found. 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).

[^208]: Parks Interview III, *supra* note Error: Reference source not
    found.

[^209]: 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).

[^210]: Parks Interview III, *supra* note Error: Reference source not
    found.

[^211]: *See* [Yves Sandoz]{.smallcaps}, [The International Committee of
    the Red Cross as Guardian of International Humanitarian
    Law]{.smallcaps} 6 (1998) \[hereinafter [ICRC Guardian of
    IHL]{.smallcaps}\] (explaining the ICRC's less well-know role as
    "guardian" of international humanitarian law).

[^212]: *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*.

[^213]: *Id*. at 7.

[^214]: *Jongny sur Vevey Memorandum,* *supra* note Error: Reference
    source not found, at 4.

[^215]: Protocol I, *supra* note Error: Reference source not found.

[^216]: *Id*.

[^217]: *Id*.

[^218]: *Jongny sur Vevey Memorandum,* *supra* note Error: Reference
    source not found, at 4.

[^219]: Trip Report 19 May 1999, *supra* note Error: Reference source
    not found.

[^220]: Parks Interview III, *supra* note Error: Reference source not
    found.

[^221]: *Id*.

[^222]: *Id*.

[^223]: *See* Mk 211 Review 14 Jan. 2000, *supra* note Error: Reference
    source not found, 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 modern battlefield, and the military
    > necessity for the weapon or projectile under consideration.

[^224]: Isabelle Daoust*, ICRC, Expert Meeting on Legal Reviews of
    Weapons and the SIrUS Project,* 842 [Int'l Rev. Red
    Cross]{.smallcaps} 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 27^th^ 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 burns
    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.