Hollow Point Bullets: How History Has Hijacked Their Use in Combat and Why It Is Time to Reexamine the 1899 Hague Declaration Concerning Expanding Bullets

• Author: Joshua F. Berry
• Position: Judge Advocate, U.S. Army
• Pages: 88-156

88 MILITARY LAW REVIEW [Vol. 206

HOLLOW POINT BULLETS: HOW HISTORY HAS HIJACKED

THEIR USE IN COMBAT AND WHY IT IS TIME TO

REEXAMINE THE 1899 HAGUE DECLARATION

CONCERNING EXPANDING BULLETS

MAJOR JOSHUA F. BERRY*

[P]ublic opinion . . . would never sanction the use of a

projectile which would cause useless suffering . . . but

we claim the right and we recognize the duty of

furnishing our soldiers with a projectile on whose result

they may rely,—a projectile which will arrest, by its

shock, the charge of an enemy and put him hors de

combat immediately.1

I. Introduction

Specialist Jonas Hayes was conducting a presence patrol in Mosul

with his platoon. It was mid-morning in June and the temperature was

already near 100 degrees. Specialist Hayes strained underneath the

weight of his equipment: an outer tactical vest loaded down with

ammunition, body armor, and communications gear. Specialist Hayes

was anxious; two weeks ago, the platoon was ambushed in the narrow

streets of the Old City and a soldier in 2d squad was killed. Not only did

the platoon lose a soldier, but one civilian was killed and two civilians

were wounded by stray bullets. As Specialist Hayes’s squad moved up

the street through the crowded market, he noticed what appeared to be a

* Judge Advocate, U.S. Army. Presently assigned as Regiment Judge Advocate, 160th

Special Operations Aviation Regiment (Airborne), Fort Campbell, Kentucky. LL.M.,

2010, The Judge Advocate General’s School, U.S. Army, Charlottesville, Virginia; J.D.,

2005, The Ohio State University Moritz College of Law; B.S., 1998, U.S. Military

Academy. Previous assignments include Trial Counsel, Office of the Staff Judge

Advocate, III Corps and Fort Hood, Fort Hood, Texas, 2008–2009; Chief of Current

Operations, Office of the Staff Judge Advocate, Multi-National Corps–Iraq, 2006–2007;

Operational Law Attorney, Office of the Staff Judge Advocate, III Corps and Fort Hood,

Fort Hood, Texas, 2006; 1st Battalion, 82d Field Artillery, 1st Cavalry Division, Fort

Hood Texas 1999–2001 (Fire Support Officer, 1999–2000; Fire Direction Officer, 2000;

Platoon Leader/Executive Officer 2000–2001); Member of the bar of Ohio. This article

was submitted in partial completion of the Master of Laws requirements of the 58th

Judge Advocate Officer Graduate Course.

1 JAMES BROWN SCOTT, THE PROCEEDINGS OF THE HAGUE PEACE CONFERENCES 277

(1921) (quoting General Sir John Ardagh in a declaration before the First Commission of

the Hague Peace Conference on June 22, 1899, defending the use of the “Dum Dum”

bullet by the British Army).

2010] HAGUE DECLARATION & EXPANDING BULLETS 89

woman in a black burqa, about fifty meters away, moving toward them.

The person appeared taller than the average woman and seemed bulky

around the midsection. The platoon had received an intelligence brief

that al Qaeda was conducting suicide bombings in northern Iraq using

men disguised as women to avoid suspicion. Specialist Hayes shouted

“Kif! Kif!” (Stop! Stop!), but the woman kept coming toward the squad.

Specialist Hayes then aimed his M-4 carbine at the woman and again

yelled for her to stop, but she kept advancing and broke into a jog.

Specialist Hayes now saw what appeared to be wires protruding from the

woman’s burqa.

Specialist Hayes felt that the woman presented a hostile threat so he

fired one round, hitting the woman, but she did not stop. Specialist Hayes

hesitated because there were dozens of civilians in the market, but then

fired another round, staggering the woman, but she kept coming. The

woman was now about thirty meters away and was still on her feet.

Specialist Hayes now engaged the woman with several rounds of 5.56

millimeter (mm) ball ammunition from his M-4 carbine. The rest of the

squad had also leveled their weapons on the woman and numerous

bullets began zipping down the street. Time seemed to stand still as the

woman finally crumpled and then the earth went white as a deafening

explosion roared through the street.

Specialist Hayes blinked as he looked up at the blue sky; his ears

were ringing and his body felt numb. He pulled himself up and checked

his extremities. He was okay. The rest of the squad got to their feet and

they were ordered to cordon the area and provide security. As the squad

fanned out past the area where the bomber had attacked, Specialist Hayes

saw numerous dead civilians and blood and body parts littering the street.

He had seen the aftermath of a bombing before, but he was not prepared

for what he saw next. As he moved about thirty meters past the bombing

site, he saw civilians shouting for help and he rushed over to see what

was wrong. There were two wounded women and a boy, all with

apparent gunshot wounds. Specialist Hayes began to perform first aid

and yelled for a medic.

Back at the forward operating base (FOB), as Specialist Hayes

cleaned the blood and dirt from his hands and clothes, he could not get

over what happened that day. He had survived a suicide bombing and his

platoon leader was telling Hayes he was a hero for stopping the bomber.

But Specialist Hayes did not feel heroic—not when he thought of the

dead civilians. Even though Hayes knew the bullets he fired were

90 MILITARY LAW REVIEW [Vol. 206

directed at a legitimate target, he could not dismiss the probability that

some of those same bullets had killed innocent bystanders. Specialist

Hayes did not know whether those bullets were misses, ricochets, or

bullets that had passed through the bomber, but he knew he felt guilty.

“Collateral damage” said his platoon sergeant. “You didn’t mean to kill

those people; they were collateral damage. Besides, what else were you

going to do? These are the only bullets we’ve got to use. It’s not like

we’re the cops back home with hollow point ammo. You’ve heard those

ROE [rules of engagement] briefs; we aren’t allowed to use hollow

point.” Specialist Hayes wished he could meet the people responsible for

this rule and tell them what it felt like to shoot bullets that killed innocent

bystanders. Maybe they could explain why he could not use a different

bullet.

Although this scenario is fictional, based loosely2 on situations

American servicemembers have faced every day in Iraq and Afghanistan

for the last eight years, the complaints about the effectiveness of the

standard M855 5.56 mm bullet used by American forces are real.3 The

M855 has a steel penetrator core that was designed to pierce Soviet Body

Armor, not “lightly clad insurgents.”4 Perhaps surprisingly, the M855

round has been described as a “weak spot in the American arsenal” that

is “not lethal enough to bring down an enemy decisively” and “puts

troops at risk.”5 Since the beginning of combat operations in Afghanistan

and Iraq, the number of complaints about the effectiveness of the M855

2 See, e.g., Mudhafer Al-Husaini & Richard A. Oppel, Jr., Suicide Bomber Is Spotted and

Shot, but Kills 3 in Baghdad, N.Y. TIMES, Feb. 18, 2008, at A4 (describing an Iraqi

response to a suicide bomber).

3 See, e.g., Major Glenn Dean & Major David LaFontaine, Small Caliber Lethality:

5.56mm Performance in Close Quarters Battle, INFANTRY MAG., Sept.–Oct. 2006, at 26

(summarizing efforts to research and address complaints with the performance of the

M855 bullet in combat); Matthew Cox, Deadlier Round Denied, ARMY TIMES, Mar. 8,

2010, at 18 (describing complaints about the current M855 round and why the Army will

not field the new Special Operations Science and Technology (SOST) 5.56 mm round);

Do U.S. Bullets Pack Enough Punch?; Ammunition Designed for Cold War Battles

Doesn’t Fit Iraq Fighting, GRAND RAPIDS PRESS, May 27, 2008, at A1 (arguing that the

smaller M855 bullet was designed to kill Soviets wearing body armor at long distances,

not insurgents at close ranges in urban environments); C.J. Chivers, How Reliable Is the

M-16 Rifle, http://atwar.blogs.nytimes.com (Nov. 2, 2009, 9:29 EST) (discussing

complaints with the effectiveness of the M16/M4 rifles and the possibility that the M855

bullet is to blame).

4 Chivers, supra note 3; Dean & LaFontaine, supra note 3, at 29–32.

5 Do U.S. Bullets Pack Enough Punch?, supra note 3. Some soldiers complain that when

the M855 round strikes an enemy “wearing only a shirt it can travel through him like an

ice pick.” Chivers, supra note 3.