5cjxburmr

6.6.3.2 Suffering and Injury Inflicted. The superfluous injury rule addresses theharm inflicted upon the persons who are struck by the weapon. The types of harm addressed bythe superfluous rule include: mortality rates, the painfulness of wounds, the severity of wounds,and the ease with which they may be treated (including the incidence of permanent damage ordisfigurement). 137 Weapons that have been modified only for the purpose of increasing thesetypes of harms for persons who have already been incapacitated are prohibited by thesuperfluous injury rule. 1386.6.3.3 Clearly Disproportionate. A weapon is only prohibited by the superfluousinjury rule if the suffering it inflicts is clearly disproportionate to its military utility. Thisexcessiveness should be assessed in light of the State practice and opinio juris and the principleof humanity.Because of the difficulty of comparing the military necessity for the weapon and thesuffering it is likely to cause, a weapon is only prohibited if the suffering is clearly or manifestlydisproportionate to the military necessity. 139 The suffering likely to result from the use of theweapon and its military effectiveness are likely to be difficult to assess, much less to compare toone another. 140authority has questioned the lawfulness of such projectiles despite the gravity of the incidental effect onpersonnel.”).137 See INTERNATIONAL COMMITTEE OF THE RED CROSS, CONFERENCE OF GOVERNMENT EXPERTS ON THE USE OFCERTAIN CONVENTIONAL WEAPONS: LUCERNE, SEPT. 24- OCT. 18, 1974, 8 (23) (Geneva, 1975) (“The concept of‘injury’ or ‘suffering’ evoked some further comment. It was generally considered that this comprised such factorsas mortality rates, the painfulness or severeness of wounds, or the incidence of permanent damage ordisfigurement.”).138 Refer to § 6.6.4 (Weapons Modified for the Purpose of Aggravating the Harm Inflicted on Incapacitated Persons).139 BOTHE, PARTSCH, & SOLF, NEW RULES 197 (AP I art. 35, 2.3.3) (“Because of the impossibility of quantifyingeither side of the equation it is important that military advantage be qualified by such words as ‘definite’, and alsothat the disproportionate suffering be ‘manifest’ or ‘clear’.”). See also W. Hays Parks, Special Assistant for Law ofWar Matters, Office of The Judge Advocate General, U.S. Army, Joint Service Combat Shotgun Program, THEARMY LAWYER 16, 18 (Oct. 1997) (“In determining whether a weapon causes superfluous injury, a balancing test isapplied between the force dictated by military necessity to achieve a legitimate objective vis-a-vis injury that may beconsidered superfluous to the achievement of the stated or intended objective (in other words, whether the sufferingcaused is out of proportion to the military advantage to be gained). The test is not easily applied; a weapon that canincapacitate or wound lethally at, for example, 300 meters or longer ranges may result in a greater degree ofincapacitation or greater lethality at lesser ranges. For this reason, the degree of ‘superfluous’ injury must be clearlydisproportionate to the intended objective(s) for development of the weapon (that is, the suffering must outweighsubstantially the military necessity for the weapon).”); W. Hays Parks, Chief, International Law Branch,International Affairs Division, Office of the Judge Advocate General, U.S. Army, Memorandum re: Sniper Use ofOpen-Tip Ammunition, Oct. 12, 1990, reprinted in THE ARMY LAWYER 86, 87 (Feb. 1991) (similar);140 BOTHE, PARTSCH, & SOLF, NEW RULES 196 (AP I art. 35, 2.3.3) (“In applying para. 2 of Art. 35, the suffering orinjury caused by a weapon must be judged in relation to the military utility of the weapon. The test is whether thesuffering is needless, superfluous, or manifestly disproportionate to the military advantage reasonably expected fromthe use of the weapon. On the humanitarian side of the equation against which military advantage is to be balancedare such factors as the painfulness or severity of wounds, mortality rates, and the incidence of permanent damage ordisfigurement and the feasibility of treatment under field conditions. Neither element of the equation can be taken inisolation. All such comparative judgments logically lead to an inquiry into how much suffering various weaponscause and whether available alternate weapons can achieve the same military advantage effectively but cause less338