Killing A Myth
By Maj W. Hays Parks - Originally Published January 1988
On 5 December 1983, as Marines were serving in Beirut as part of the Multinational Peacekeeping Force, the following appeared on page one of The Washington Post:
A Marine Corps spokesman [in Beirut] alleged that among the weapons used against the Marines was the Soviet-made ZU-23M antiaircraft gun, which he said was banned by the Geneva War Conventions [sic] for use against ground forces.
More recently, instructors at Marine Corps Recruiting Depot Parris Island and at The Basic School were teaching that the .50 caliber machinegun could not be used against ground forces. Instructors at the U.S. Army Infantry School, apparently laboring under the same impression, resolved it by teaching that:
The .50 caliber machinegun can be used against enemy military equipment, but not personnel. So be sure to aim your .50 caliber machinegun at the enemy soldier's belt buckle.
In contrast, in the opening pages of the recently published Marine Sniper, there is a description of the employment of a .50 caliber machinegun as a highly effective sniper weapon.
Who is right? Has Marine GySgt Carlos Hathcock, the subject of Marine Sniper, commited a "war crime"?
Absolutely not. All three of the initial statements are wrong. No prohibition exists in the Geneva Conventions, any other law of war treaty, nor in any other part of the law of war on the use of weapons such as the 23mm ZU-23 or the .50 caliber machinegun as antipersonnel weapons.
There may appear to be a basis for a prohibition on the use of such weapons against individual enemy soldiers in Article 23e of the Annex to Hague Convention IV of 1907, which prohibits the employment of arms, projectiles, or material calculated to cause unnecessary suffering. (A historic inconsistency of the law of war is that while it is legally permissible to kill an enemy soldier, should you only wound him, the wound should not cause unnecessary suffering.) In theory, if an enemy soldier can be disabled by a single bullet from, for example, an M16, then two bullets from an M16 or a round from anything larger may cause unnecessary suffering. The theory pales when considering the lethality of the 20th century battlefield. Statesmen, diplomats, and lawyers, recognizing the impracticality of such theory, wisely have avoided any attempt to define the concept of unnecessary suffering.
There is a long history of employment of infantry weapons up to .70 caliber against enemy personnel. The first U.S. musket, made in 1795, was .70 caliber. The first U.S. percussion musket, the Model 1842, was caliber .69, as was an 1847 musketoon developed for use by the cavalry, artillery, and sappers. In 1885, the U.S. Army standardized the caliber .58; the Navy chose to retain the larger caliber .69. Larger wall pieces-up to caliber .75were manufactured as long-range sniper rifles for defense of frontier posts. Muskets and rifles used by other nations during this time also ranged up to .70 caliber.
With the introduction of better grade steel, the breech block system, rifling, and more powerful propellents, calibers decreased. By 1900, projectiles ranging from calibers .236 to .315 had been adopted by the major nations of the world. In contrast with the issues at hand, some argued that this decrease in caliber (and a commensurate increase in muzzle velocity) caused greater suffering than previous larger caliber weapons, an argument similar to that preferred by Sweden in the 1970s against the 5.56mm (.223 caliber) M16 rifle. This argument was not supported by medical evidence on either occasion and was rejected at the Hague Peace Conferences of 1899 and 1907 and the 1978-1980 United Nations Conference on Prohibitions or Restrictions on the Use of Certain Conventional Weapons (UNCCW).
Larger caliber weapons have remained in the inventories of virtually every nation. For example, the Soviet Union mounts the NSV .50 caliber machinegun on its tanks; it can be removed and employed on a tripod in a ground mode. Nations generally employ .50-caliber machineguns as antiaircraft, antimateriel, and antipersonnel weapons. On occasion they have been employed specifically as long-range sniper weapons. The Soviet Degtyarev PTRD was a 14.5mm (.58 caliber) boltaction, single-shot antitank weapon employed during World War II; because of its long-range accuracy, it frequently was employed as a sniper weapon against German troops. The U.S. Army experimented with employment of the .50 caliber Browning machinegun as a sniper weapon in the mid-1930s, and employed it as such on occasion in World War II, Korea, and Vietnam. Other experiments were conducted after World War II, with the Army developing and combat testing the .50 caliber Brophy rifle during the Korean War. In recent years, at least three U.S. companies have produced .50 caliber sniper rifles for use by the U.S. military.
Doctrine for the Browning M2 HB .50 caliber machinegun is contained in U.S. Army Field Manual 23-65 (May 1972). Paragraph 80 provides in part:
Types of targets. Targets presented to the machinegunners during combat will in most cases consist of enemy soldiers in various formations which require distribution and concentration of fire . . . .
a. Point targets are targets which require the use of a single aiming point. Enemy bunkers, weapons emplacements, vehicles, small groups of soldiers, and aerial targets such as helicopters or descending paratroopers are examples of point targets . . . .
During the 1978-1980 UNCCW, as well as at separate conferences of government experts held at Lucerne and Lugano, Switzerland, in 1974 and 1976 respectively, discussions of small caliber weapons included all weapons up to .60 caliber. There were no proposals to restrict the use of larger small caliber weapons against personnel. In addition to their universal employment as antipersonnel weapons, there was the practical realization that in firing .50 caliber projectiles at other legitimate targets (for example, enemy vehicles), some rounds inevitably would strike enemy personnel. Hence, it would be impossible to attempt to limit the intentional attack of enemy personnel with .50 caliber weapons when those personnel could be struck by the same projectiles as the result of a lawful attack on materiel targets.
While employment of the .50 caliber machinegun or other .50 caliber weapons against enemy personnel does not violate the law of war, there remains the question of how its purported illegality arose in the first place. There appears one plausible explanation.
During the 1950s, 1960s, and 1970s, the U.S. Army and Marine Corps had in their inventories the M40 106mm recoilless rifle. Designed primarily for antiarmor use, the M40 was equipped with the M8C .50 caliber spotting gun. The M8C was used to assist the gunner in determining range and leads to the target. It fired a spotter round containing a tracer element and an incendiary filler. On impact, the incendiary filler produced a puff of white smoke intended to aid in adjusting fire. The spotter round was designed so that its trajectory matched the trajectory of the 106mm recoilless rifle service ammunition. The spotter round was designed to be used in the spotting rifle only.
Although the M40 could be used against enemy personnel (in particular, using the flechette-loaded M581 APERS-T round), the M40 essentially was a single shot antitank weapon that relied on concealment and surprise in order to attack enemy armor and survive on the battlefield. Utilization of the M8C .50 caliber spotting gun against an individual soldier would have compromised the position of the M40, making it and its crew vulnerable to attack. Hence tactical, not legal, limitations were placed on the employment of the M8C .50 caliber spotting gun against enemy personnel. It appears that this practical limitation on the use of the M8C somehow was transferred to all .50 caliber weapons, and that in time it was assumed that the restriction was based on some aspect of the law of war. Such transfer of this tactical limitation and the assumption of a law of war basis are incorrect.
Current U.S. doctrine providing for the use of the .50 caliber machinegun as an antipersonnel weapon is consistent with the law of war obligations of the United States. No treaty language exists (either generally or specifically) to support a limitation on its use against personnel, and its widespread, longstanding use in this role suggests that such antipersonnel employment is the customary practice of nations.
The issue of the ZU-23 is similar. The ZU-23 is a 23mm (.92 caliber) weapon using high-explosive incendiary and armor-piercing incendiary ammunition. Like the U.S. Army M42 twin 40mm antiaircraft self-propelled gun ("Duster"), the GAU-12/U 25mm armament system carried in the AV-8 Harrier, and the GAU-8/A 30mm gun system used in the Air Force A-10 and the Navy's Goalkeeper antimissile close-in weapon system, the ZU-23 is intended primarily for antiaircraft or antiarmor purposes. But it has the capability of being employed against the full array of ground targets, including exposed enemy personnel, and there is no law of war restriction on such use. The 40mm Duster was employed primarily in an antipersonnel role in Vietnam, for example.
There are practical limitations on constructing or implementing a rule to the contrary. Consider, for example, enemy troops advancing on your position with two light armored vehicles (LAVs); some troops are riding on the outside of one of the LAVs, while the others are dismounted, if there were a law of war restriction on use of such a weapon directly against enemy personnel, could you engage only the LAV carrying no enemy troops? Both LAVs, but not dismounted troops? If you requested air support, and the only thing available was a Harrier that had exhausted all of its ordnance except the rounds in its GAU-12, would it be prohibited from attacking the enemy force? If it did attack, what would be the law of war consequences if the dismounted troops were struck incidental to a lawful attack on the LAVs? Assuming 155mm guns were brought to bear with indirect fire, how could it be said (or determined) that the direct fire of a weapon such as the ZU-23 or GAU-12 causes greater suffering than fragments from a 155mm shell? It is for such reasons that the international community has wisely refrained from attempting to regulate the employment of such weapons on the modern battlefield.
The law of war is part of the body of law that we as Marines have taken an oath to respect in discharging our duties in peace or war. But it is important to distinguish what is part of that law from what is not.