OCTOBER 1997 THE ARMY LAWYER • DA-PAM 27-50-299 16
Joint Service Combat Shotgun Program
W. Hays Parks
Special Assistant for Law of War Matters,
Office of The Judge Advocate General, U.S. Army
There is a long history of the use of shotguns in combat. But
in the closing days of World War I, Germany objected to the
U.S. use of shotguns, claiming their use violated the law of war.
Although the German claim was promptly rejected by the
United States, questions about the legality of shotguns persisted.
This article1 sets forth the history of the combat use of
shotguns, the 1918 German protest and U.S. response, and an
analysis of the issue in contemporary terms. The memorandum
of law upon which this article is based was coordinated with the
other services, Army and DOD General Counsel, and the
Department of State, and it reaffirms the legality of the shotgun
for combat use.
The Requirement for a Legal Review
Various regulations require a legal review for all weapons
which will be procured to meet a military requirement of the
armed forces of the United States.2 The purpose of the legal
review is to ensure that the intended use of each weapon,
weapon system, or munition is consistent with customary international
law and the international law obligations of the United
States, including law of war treaties and arms control agreements
to which the United States is a party. Accordingly, the
commander of the United States Marine Corps Systems Command
requested a joint legal review of the Joint Service Combat
Shotgun program by the Offices of the Judge Advocate Generals
of the Army, Navy, and Air Force.
The Joint Service Combat Shotgun (Combat Shotgun) is a
joint program to select and field a lightweight, semiautomatic,
12-gauge shotgun to replace pump action shotguns currently in
use by each of the military services. The Marine Corps is acting
as the lead service for the program, and the U.S. Army, Navy,
Air Force, and Coast Guard are the participating services. The
Joint Service Small Arms Program office conducts general
oversight of the program and provides research, development,
testing, and evaluation funding to support the procurement
effort. The commander of the Marine Corps Systems Command
has been designated as the Milestone Decision Authority
for the program.
The Combat Shotgun to be procured and fielded will be
required to satisfy the following operational and physical
requirements described in the Joint Operational Requirement
Document and further amplified in the contract Purchase
(1) Capable of semiautomatic operation.
(2) Capable of firing both standard Department
of Defense (DOD) 2.75-inch, 12-gauge
No. 00 buckshot, No. 7 1/2 shot, No. 9 shot,
and slug ammunition,3 and 3.0-inch 12-
gauge commercial ammunition conforming
to Sporting Arms and Ammunition Manufacturers’
Institute (SAAMI) standards without
adjustment to the operating system. The
Marine Corps Systems Command is unaware
of any DOD acquisition programs to procure
and type classify 3.0-inch, 12-gauge ammunition
for use by DOD components.4
(3) Have a maximum effective range of forty
meters (fifty meters desired) with the DOD
standard 2.75-inch No. 00 buckshot ammunition,
and 100 meters (125 meters desired)
with slug ammunition.
(4) Have a length of 41.75 inches or less and
be capable of being reconfigured to, and be
operated at a length of, 36 inches or less.
(5) Weigh no more than 8.5 pounds (six
pounds desired) unloaded.
1. This article is derived from the author’s legal review, dated 24 January 1997, of the Joint Service Combat Shotgun Program, which he wrote for The Judge Advocate
General, U.S. Army.
2. U.S. DEP’T OF DEFENSE, DIR. 5000.1, DEFENSE ACQUISITION (15 Mar. 1996) [hereinafter DOD DIR. 5000.1]; U.S. DEP’T OF ARMY, REG. 27-53, REVIEW OF LEGALITY
OF WEAPONS UNDER INTERNATIONAL LAW (1 Jan. 1979); U.S. DEP’T OF NAVY, SECRETARY OF THE NAVY INSTR. 5711.8A, REVIEW OF LEGALITY OF WEAPONS UNDER INTERNATIONAL
LAW (29 Jan. 1988); U.S. DEP’T OF AIR FORCE, INSTR. 51-402, WEAPONS REVIEW (13 May 1994).
3. The 12-guage door-breaching cartridge was the subject of a coordinated review that approved that round. Shotgun slug ammunition, an antimateriel munition,
will be the subject of a separate review.
4. Memorandum, Commander, Marine Corps Systems Command, subject: Joint Service Combat Shotgun Program, Request for Legal Review (13 Sept. 1996).
OCTOBER 1997 THE ARMY LAWYER • DA PAM 27-50-299 17
(6) Be equipped with Low Light Level iron
sights and a standard U.S. Military accessory
mounting rail integral to the upper receiver,
to permit use of other sight enhancement
The Combat Shotgun will be employed by personnel in each
of the armed services in international armed conflict, internal
armed conflict, and military operations other than war and will
be used for missions to include the execution of security/interior
guard operations, rear area security operations, guarding
prisoners of war, raids, ambushes, military operations in urban
terrain, and selected special operations.
As history constitutes State practice, consideration of the
legality of the Combat Shotgun requires a summary of the history
of the military use of shotguns and related legal issues.
The military history of the shotgun dates to the middle of the
sixteenth century, when the blunderbuss was invented in Germany
and the smoothbore Birding Piece or Long Fowler was
developed in England. While the latter was developed for hunting,
the former was a close-range, antipersonnel weapon from
the outset. The dual use—for hunting and personal protection
—and greater range of the Long Fowler caused it to survive
and to flourish as the blunderbuss began to wane in the first
quarter of the nineteenth century.
The blunderbuss saw considerable use by British, European,
and American military forces before its ultimate demise. Austrian,
Prussian, and British regiments were equipped with the
blunderbuss; for example, British General Sir John Burgoyne
raised a Light Dragoon Regiment in 1781 equipped with the
blunderbuss. Navies employed the blunderbuss as a weapon
for repelling boarding parties. The blunderbuss and the shotgun
established the character of the modern military shotgun: a
multiple-projectile weapon for close-range combat. Development
of the high-velocity, small-caliber rifle which possesses
greater range and accuracy, resulted in an initial decline in the
use of the shotgun in combat, a trend which began to reverse in
World War I. There is no known evidence that shotgun use in
combat diminished because of a question as to its legality.6
The combat shotgun or military rifle with a shotgun-type
munition continued to be used in the United States. In the
American Revolution, General George Washington encouraged
his troops to load their muskets with "buck and ball," a load
consisting of one standard musket ball and three to six buckshot,
in order to increase the probability of achieving a hit. In
the subsequent Seminole Indian Wars in Florida (1815-1845),
buck-and-ball was standard issue for military muskets.
As the buck-and-ball round slowly succumbed to improvements
in small arms technology that brought greater rifle accuracy,
the shotgun remained in military use. Texans made
effective use of the shotgun in their unsuccessful defense of the
Alamo (6 March 1836) and their defeat of the Mexican Army
forces of General Santa Anna in the battle of San Jacinto six
weeks later. In the subsequent war with Mexico in 1846,
Marine Corps Major Levi Twiggs employed a shotgun, reportedly
with good effect, during the Marine Corps’ march from
Vera Cruz to Mexico City. During the American Civil War, .58-
and .69-caliber smoothbore rifles using buck-and-ball, and
shotguns, were used in combat by Union and Confederate
forces, primarily by cavalry units. For example, the shotgun
was a preferred weapon for the Confederate cavalry commanded
by General Nathan Bedford Forrest, who readily saw
its value for close-quarter combat. United States Cavalry units
subsequently employed shotguns during the Indian wars
between 1866 and 1891.
Shotguns were employed by United States Army and Marine
Corps units during the insurrection that raged in the Philippines
from 1899 to 1914, and by Brigadier General John Pershing in
the 1916 punitive expedition into Mexico in pursuit of Pancho
Villa. When World War I entered its stalemated trench warfare
phase, both French and British High Commands considered,
but rejected, the use of double-barreled shotguns in trench
defense. The rejection of their use was not due to any questions
as to their legality, but was due to the perceived ineffectiveness
of their light bird shot loads and, undoubtedly, the requirement
for and difficulty of frequent, quick reloading of a double-barreled
shotgun in close combat. When the United States entered
World War I in 1917, General Pershing was placed in command
of the American Expeditionary Forces (AEF). General Pershing’s
forces employed 12-gauge repeating (pump action) shotguns,
loaded with six No. 00 buckshot shells, for close-range
defensive fires against enemy infantry assaults, trench raids,
and assaults on enemy trenches and machine gun positions.
The highly-effective use of the shotgun by United States
forces had a telling effect on the morale of front-line German
troops. On 19 September 1918, the German government issued
a diplomatic protest against the American use of shotguns,
alleging that the shotgun was prohibited by the law of war.7
After careful consideration and review of the applicable law by
The Judge Advocate General of the Army, Secretary of State
5. The primary source for this historical section is Thomas F. Swearengen’s authoritative source on the subject. THOMAS F. SWEARENGEN, THE WORLD’S FIGHTING
SHOTGUNS (1978); see also Paul B. Jenkins, Trench Shotguns of the AEF, THE AM. RIFLEMAN, Nov. 1935, at 14-15, 22; Howard M. Madaus, The Use of the Percussion
Shotgun in Texas Prior to and During the American Civil War, 1861-1865, ARMAX, at 133-172 (1995).
6. The 1918 German protest and the language of its present law of war manual are discussed infra.
7. The German protest and U.S. response are discussed in greater detail infra.
OCTOBER 1997 THE ARMY LAWYER • DA-PAM 27-50-299 18
Robert Lansing rejected the German protest in a formal note.
This is the only known occasion in which the legality of actual
combat use of the shotgun has been raised.
Shotguns were employed by Allied-supported partisans and
guerrillas in Europe and Asia during World War II, and by the
United States Army and Marine Corps in the Pacific and China-
Burma-India (CBI) theaters. The short range of the shotgun
made it of limited value for conventional forces in the open
European battlefields, but its close-range effectiveness made it
invaluable in the dense jungle battlefields of the Pacific and
CBI theaters. Shotguns were employed in combat in the Korean
War, primarily for command post security and close-range protection
for machine-gun positions. Human-wave attacks by
North Korean and Chinese forces led to the development of the
Claymore mine, a multiple-fragmentation antipersonnel munition
that performs like a shotgun in its directed dispersion of
In the post-World War II insurgency/counterinsurgency era,
shotguns were employed by guerrilla and military forces in virtually
every conflict in sub-Sahara Africa, Latin and South
America, and Southeast Asia. In their successful counterinsurgency
campaign in Malaya (1948-1959), British forces
employed shotguns in jungle operations, as did British, Australian,
and New Zealand special operations forces in their 1963-
1966 Borneo campaign. Shotguns were employed by Viet
Minh and French forces in the Indochina War (1946-1954) and
by the Viet Cong against the military forces of the Government
of the Republic of South Vietnam (1956-1975). United States,
Australian, and New Zealand units employed shotguns in their
operations against Viet Cong guerrillas and North Vietnamese
military forces in the Republic of Vietnam (1965-1972). They
also used the Claymore mine and a shotgun round for the M79
grenade launcher. United States Marine Corps personnel
employed shotguns in the recapture from Cambodian forces of
the container ship Mayaguez on 12 May 1975. United States
Air Force security police employed shotguns in base security
operations in Saudi Arabia during Operations Desert Shield and
Desert Storm (1990-91) to protect them from attack by terrorists
or Iraqi military units, and some personnel in British
armored units were armed with shotguns as individual weapons
during that conflict.
The history of combat use of the shotgun reveals that it is a
limited range but highly effective close-range, specialized
weapon. Although recorded use has been primarily by United
States and British military forces and their close allies, the shotgun
has been employed in combat by the militaries of other
nations and guerrilla or partisan forces where its use was of
value for a specific mission, or in a particular conflict where its
close-range effectiveness provided a military advantage. There
is substantial State practice of shotgun use in combat over more
than two centuries. In contrast, there is no known evidence that
shotgun use in combat has been curtailed by any nation due to
concerns as to its inconsistency with the law of war.
Legal Considerations and Analysis
The Combat Shotgun raises two issues with regard to its
legality. First, does a weapon capable of inflicting multiple
wounds upon a single enemy combatant cause superfluous
injury, as prohibited by Article 23(e) of the Annex to the Hague
Convention IV Respecting the Laws and Customs of War on
Land of 18 October 1907? Second, does the No. 00 buckshot
projectile, or other smaller buckshot projectiles, expand or flatten
easily, in violation of the Hague Declaration Concerning
Expanding Bullets of 29 July 1899? Each of these questions
will be addressed in the analysis that follows.
Does a Weapon Capable of Inflicting Multiple Wounds
upon a Single Enemy Combatant Cause Superfluous
Injury, as Prohibited by the Law of War?
The principal treaty provision to which the United States is
a party relating to the legality of weapons is contained in Article
23(e) of the Annex to Hague Convention IV Respecting the
Laws and Customs of War on Land of 18 October 1907,8 which
prohibits the employment of "arms, projectiles, or material calculated
to cause unnecessary suffering."9 In some texts, the
term superfluous injury is used in lieu of unnecessary suffering.
While the two terms often are regarded as synonymous, the
former is the more accurate translation from the authentic
French text—"propres a causer des maux superflus."10
Neither superfluous injury nor unnecessary suffering has
been defined. In determining whether a weapon causes superfluous
injury, a balancing test is applied between the force dictated
by military necessity to achieve a legitimate objective visa-
vis injury that may be considered superfluous to the achievement
of the stated or intended objective (in other words,
whether the suffering caused is out of proportion to the military
advantage to be gained). The test is not easily applied; a
weapon that can incapacitate or wound lethally at, for example,
300 meters or longer ranges may result in a greater degree of
incapacitation or greater lethality at lesser ranges. For this reason,
the degree of "superfluous" injury must be clearly disproportionate
to the intended objective(s) for development of the
weapon (that is, the suffering must outweigh substantially the
military necessity for the weapon).
8. Hague Convention IV Respecting the Laws and Customs of War on Land, Oct. 18, 1907, annex, art. 23e, 36 Stat. 2277.
OCTOBER 1997 THE ARMY LAWYER • DA PAM 27-50-299 19
The fact that a weapon causes injury or death does not lead
to the conclusion that the weapon causes superfluous injury, or
is illegal per se. Military necessity recognizes that weapons of
war lead to death, injury, and destruction; the act of combatants
killing or wounding enemy combatants in battle is a legitimate
act under the law of war. That the law of war prohibits unnecessary
suffering is an acknowledgment that the law of war recognizes
as legitimate necessary suffering in combat. Deadly
force also may be used lawfully against persons who are committing
or threatening to commit crimes of violence who are not
protected by the law of war, such as terrorists.
What is prohibited is the design or modification and employment
of a weapon for the purpose of causing suffering beyond
that required by military necessity. In conducting the balancing
test necessary to determine a weapon’s legality, the effects of a
weapon cannot be weighed in isolation. They must be examined
against comparable weapons in use on the modern battlefield
and the military necessity for the weapon under
The 1918 German Protest11
On 19 September 1918, the Government of Switzerland,
representing German interests in the United States, presented to
the U.S. Secretary of State a cablegram received by the Swiss
Foreign Office containing the following diplomatic protest by
the Government of Germany:
The German Government protests against the
use of shotguns by the American Army and
calls attention to the fact that according to the
law of war (Kriegsrecht) every [U.S.] prisoner
[of war] found to have in his possession
such guns or ammunition belonging thereto
forfeits his life. This protest is based upon
article 23(e) of the Hague convention [sic]
respecting the laws and customs of war on
land. Reply by cable is required before October
The German protest was precipitated in part by the capture
in the Baccarat Sector (Lorraine) of France, on 21 July 1918, of
a U.S. soldier from the 307th Infantry Regiment, 154th Infantry
Brigade, 77th Division, AEF, who was armed with a 12-gauge
Winchester Model 97 repeating trench (shot) gun, and a second,
similarly-armed AEF soldier from the 6th Infantry Regiment,
10th Infantry Brigade, 5th Division, on 11 September 1918 in
the Villers-en-Haye Sector. Each presumably possessed issue
ammunition, which was the Winchester "Repeater" shell, containing
nine No. 00 buckshot.
The German protest was forwarded by the Department of
State to the War Department, which sought the advice of The
Judge Advocate General of the Army. Brigadier General Samuel
T. Ansell, Acting Judge Advocate General, responded by
lengthy memorandum dated 26 September 1918. Addressing
the German protest, General Ansell stated:
Article 23(e) simply calls for comparison
between the injury or suffering caused and
the necessities of warfare. It is legitimate to
kill the enemy and as many of them, and as
quickly, as possible . . . . It is to be condemned
only when it wounds, or does not kill
immediately, in such a way as to produce suffering
that has no reasonable relation to the
killing or placing the man out of action for an
The shotgun, although an ancient weapon,
finds its class or analogy, as to purpose and
effect, in many modern weapons. The dispersion
of the shotgun [pellets] . . . is adapted
to the necessary purpose of putting out of
action more than one of the charging enemy
with each shot of the gun; and in this respect
it is exactly analogous to shrapnel shell discharging
a multitude of small [fragments] or
a machine gun discharging a spray of . . . bullets.
The diameter of the bullet is scarcely greater
than that of a rifle or machine gun. The
weight of it is very much less. And, in both
size and weight, it is less than the . . . [fragments]
of a shrapnel shell . . . . Obviously a
pellet the size of a .32-caliber bullet, weighing
only enough to be effective at short
ranges, does not exceed the limit necessary
for putting a man immediately hors de combat.
The only instances even where a shotgun
projectile causes more injury to any one
enemy soldier than would a hit by a rifle bullet
are instances where the enemy soldier has
approached so close to the shooter that he is
struck by more than one of the nine . . . [No.
00 buckshot projectiles] contained in the cartridge.
This, like the effect of the dispersing
of . . . [fragments] from a shrapnel shell, is
permissible either in behalf of greater effectiveness
or as an unavoidable incident of the
use of small scattering projectiles for the nec-
11. See U.S. DEP’T OF STATE, PAPERS RELATING TO THE FOREIGN RELATIONS OF THE UNITED STATES, 1918, Supp. 2 (The World War), at 785-86 (1933). This summary is
based upon official correspondence contained in this and related official documents.
OCTOBER 1997 THE ARMY LAWYER • DA-PAM 27-50-299 20
essary purpose of increasing [the] likelihood
of killing a number of enemies.
General Ansell concluded his memorandum with the statement
that "The protest is without legal merit."
Acting Secretary of War Benedict Crowell endorsed General
Ansell’s memorandum of law and forwarded it to the Secretary
of State that same day. Secretary of State Robert Lansing provided
the following reply to the Government of Germany two
[T]he . . . provision of the Hague convention,
cited in the protest, does not . . . forbid the use
of this . . . weapon . . . . [I]n view of the history
of the shotgun as a weapon of warfare,
and in view of the well-known effects of its
present use, and in the light of a comparison
of it with other weapons approved in warfare,
the shotgun . . . cannot be the subject of legitimate
or reasonable protest.
. . . .
The Government of the United States
notes the threat of the German Government
to execute every prisoner of war found to
have in his possession shotguns or shotgun
ammunition. Inasmuch as the weapon is
lawful and may be rightfully used, its use will
not be abandoned by the American Army . . .
[I]f the German Government should carry
out its threat in a single instance, it will be the
right and duty of the . . . United States to
make such reprisals as will best protect the
American forces, and notice is hereby given
of the intention of the . . . United States to
make such reprisals.
World War I ended six weeks later, without reply by Germany
to the United States response. There is no record of any
subsequent capture by German forces of any U.S. soldier or
marine armed with a shotgun or possessing shotgun ammunition,
or of Germany carrying out its threat against the U.S. soldiers
it captured earlier.
The position of the United States as to the legality of shotguns
remains unchanged from that stated in the opinion of Brigadier
General Ansell and the Secretary of State’s 28 September
1918 reply to the government of Germany.
Further Consideration of the Article 23(e)
Prohibition on Superfluous Injury
As the memorandum from which this article is derived is the
first legal review of the combat shotgun since the institution of
the Department of Defense program for such reviews,12 the
issue of whether a shotgun causes superfluous injury in violation
of Article 23(e) of the Annex to the 1907 Hague Convention
IV merits fresh examination.
Shotguns and shotgun cartridges are designed or chosen to
produce a desired projectile pattern at a specific distance. Their
military purpose is the simultaneous projection in the direction
of a close-range target of a number of projectiles in order to
increase the probability of striking the intended target. This
objective has been borne out in combat. British examination of
its Malaya experience determined that, to a range of thirty yards
(27.4 meters), the probability of hitting a man-sized target with
a shotgun was superior to that of all other weapons. The probability
of hitting the intended target with an assault rifle was
one in eleven. It was one in eight with a submachine gun firing
a five-round burst. Shotguns had a hit probability ratio twice as
good as rifles. A 1952 British study by the Commander of British
Security Forces, compiled from combat action reports, tests,
and other studies (including medical), reconfirmed the previous
finding that the shotgun was a highly-effective combat weapon
at ranges out to seventy-five yards (68.6 meters).13 Traveling at
velocities one-third to one-half that of a modern military rifle
bullet, with a poor ballistic coefficient (particularly when compared
to the good ballistic coefficient of modern military rifle
bullets), shotgun buckshot also diminish risk of injury from
projectile over-penetration (through walls or doors) to civilians
who are not taking a direct part in the hostilities or to friendly
force combatants during military operations in urban terrain.
These reasons confirm the military necessity for shotguns.
The second issue is whether wounding by a shotgun constitutes
superfluous injury, that is, that the wounds it causes are
disproportionate when compared to its military necessity or to
comparable wounding mechanisms to which a soldier may be
exposed on the battlefield. The proposed transition from a
pump (manually-operated slide) action to a semiautomatic
action poses no law of war issues, but simply follows the military
weapons evolution that began at the beginning of this century
with military pistols and rifles.
Whether a shotgun creates wounds that are excessive to its
military necessity will be addressed, in part, later in the discussion
of shotgun ammunition. In the general sense, it is
addressed here in terms of the fact that the use of a shotgun at
close range increases the probability that targeted enemy combatants
may be struck by more than a single projectile; the
present question is whether multiple wounding is contrary to
12. The program commenced with a DOD Instruction. U.S. DEP’T OF DEFENSE, INSTRUCTION 5500.15 (16 Oct. 1974). The successor to that DOD Instruction was
implemented in 1996. DOD DIR. 5000.1, supra note 2.
13. Swearengen, supra note 5, at 15.
OCTOBER 1997 THE ARMY LAWYER • DA PAM 27-50-299 21
the prohibition on superfluous injury. It is not, and State practice
is substantially to the contrary. Wounding by more than
one projectile is extremely common on the battlefield due to the
various lawful fragmentation munitions in use, such as antipersonnel
landmines, artillery and mortar fragments, canister
rounds, Claymore mines,14 and hand or rifle grenades, as well
as the extensive projection towards an enemy force of automatic
and semiautomatic small arms fire.
A corollary question is whether shotgun projectiles as such
inflict wounds greater than those imposed by comparable
wounding mechanisms in use on the modern battlefield.
Although it can result in fatal wounds, shotgun wounds appear
substantially less significant than those inflicted by weapons
such as artillery fragments, incendiary weapons, and antipersonnel
For the foregoing reasons, the possibility that an enemy
combatant may suffer multiple wounds as the result of the battlefield
use of a shotgun as such does not contravene the prohibition
on superfluous injury contained in Article 23(e) of the
Annex to the 1907 Hague Declaration IV.
Other Initiatives Relevant to the Question
In August 1992, the Government of Germany issued a new
law of war manual.16 Paragraph 407 of the manual states: "It is
prohibited to use bullets which expand or flatten easily in the
human body (e.g., dum-dum bullets) (Hague Decl 1899). This
also applies to the use of shotguns, since shot causes similar
suffering unjustified17 from the military point of view. . . ."18
The issue of whether shotgun buckshot violates the prohibition
contained in the Hague Declaration Concerning Expanding
Bullets of 29 July 189919 is addressed later in this article. Since
the German manual’s objection to the shotgun relies upon the
1899 Hague Declaration Concerning Expanding Bullets, it can
be assumed that the Government of Germany no longer regards
the combat use of shotguns as a violation of the general prohibition
of weapons causing superfluous injury, contained in Article
23(e) of the Annex to Hague Convention IV of 18 October
1907, as previously asserted in its diplomatic note of 23 September
As previously indicated, the United States developed the
M18 (later the M18A1) Claymore mine following the Korean
War. The M18A1 is an antipersonnel directed fragmentation
device containing 760 10.5-grain steel balls which, on detonation,
are dispersed in a sixty-degree arc extending fifty meters
at a maximum height of two meters in front of the mine. It is
employed with obstacles or on the approaches, forward edges,
flanks, and rear edges of protective minefields as close-in protection
against a dismounted infantry attack. Although initially
developed to address human-wave attacks, the Claymore can
be, and has been, employed as a perimeter-security weapon
against individual enemy combatants. The Claymore subsequently
has been manufactured by several nations, and it is in
the military inventory of many nations, including Germany.20
On 10 October 1980, following two years of negotiations,
the United Nations Conference on Prohibitions or Restrictions
on the Use of Certain Conventional Weapons Which May Be
Deemed to Be Excessively Injurious or to Have Indiscriminate
Effects adopted a convention bearing the same name
(UNCCW). Protocol II of the UNCCW regulates the employment
of landmines, booby traps, and other devices.
On 3 May 1996, the United Nations concluded its first
review conference for the UNCCW. A primary objective of
that review conference was the amendment of Protocol II of the
UNCCW to address the indiscriminate effect of the irresponsible
use of landmines. In the course of those negotiations, the
14. As indicated herein, a Claymore mine projects 760 steel fragments. In contrast, a No. 00 buckshot shotgun round projects nine. The comparable wounding effect
on an enemy combatant at the same distance is apparent.
15. See, e.g., William W. Tribby, MD, Examination of 1,000 American Casualties Killed in Italy, in WOUND BALLISTICS 437-471 (Wash., D.C.: Office of the Surgeon
General of the Army, 1962) [hereinafter WOUND BALLISTICS] (containing a narrative and photographs of the extent of battlefield wounds); see also Amended Protocol
II on Mines, Booby Traps, and Other Devices to the 1980 Conventional Weapons Convention, May 3, 1996, 1997 WL 49691 (restricting the employment of antipersonnel
landmines (APL) in order to protect civilians not taking a direct part in the hostilities). The Amended Protocol did not conclude that APL are illegal per se or
prohibit their use against enemy combatants. Id. Current proposals for a worldwide ban on APL have as their basis the indiscriminate effect of their irresponsible
and illegal use in a limited number of conflicts and the concomitant, adverse effect on the civilian population, rather than their effect in injuring combatants.
16. HUMANITARIAN LAW IN ARMED CONFLICTS—MANUAL (DSK VV207320067) (August 1992) [hereinafter MANUAL].
17. The German manual’s use of the term unjustified suffering is not explained. It is not a standard recognized in the law of war. It also apparently is a standard with
which the Government of Germany no longer agrees, given its endorsement of the legality of the Claymore mine, discussed infra, and German military possession of
shotguns and Claymore mines as part of its Table of Equipment.
18. MANUAL, supra note 16.
19. The Hague Declaration Concerning Expanding Bullets, July 29, 1899, 1 A.J.I.L. 157-59 (Supp.). See also THE LAWS OF ARMED CONFLICTS 109-111 (Dietrich
Schindler & Jiri Toman eds., 3d ed. 1988); DOCUMENTS ON THE LAWS OF WAR 39-42 (Adam Roberts & Richard Guelff eds., 2d ed. 1989).
20. Following reunification on 3 October 1990, the German Army redesignated the landmine as the DM-51 and retained the former East German Army MON-50,
which is the USSR copy of the U.S. M18A1 Claymore mine.
OCTOBER 1997 THE ARMY LAWYER • DA-PAM 27-50-299 22
States Parties drafted and adopted the following language in
paragraph 6, Article 5 of Protocol II:
Weapons to which this Article applies which
propel fragments in a horizontal arc of less
than 90 degrees and which are placed on or
above the ground may be used without the
measures provided for in subparagraph 2(a)
of this Article for a maximum period of 72
(a) they are located in immediate proximity
to the military unit that emplaced them; and
(b) the area is monitored by military personnel
to ensure the effective exclusion of civilians.
This provision was written expressly to exclude Claymore
mines from the requirements for the employment of antipersonnel
landmines when employed in the manner stated. It was
adopted by the consensus of the participating States Parties,21
including Germany. In promulgating this provision, the States
Parties expressly confirmed the legality of the Claymore mine,
which (as previously noted) performs like a shotgun, and with
far more devastating effect on enemy personnel. This acknowledgment
of the legality of the Claymore mine also serves to
reconfirm the legality of the potential multiple-wounding characteristic
of the shotgun.
Conclusion as to the First Legal Issue
As evidenced by the customary practice of nations and a
review of applicable treaty law, the possible multiple-wounding
characteristic of the combat shotgun does not violate the law of
war prohibition of superfluous injury.
Does the No. 00 Buckshot Projectile, or do Other
Smaller Buckshot Projectiles, Expand or Flatten Easily,
in Violation of the Hague Declaration Concerning
Expanding Bullets of 29 July 1899?
Historically and currently, the primary antipersonnel round
used in a combat shotgun is loaded with nine No. 00 buckshot
(.33 inch diameter (.8382 cm.)) projectiles, with a propellant
charge of approximately twenty-six grains (1.68 grams) of
smokeless powder.22 The projectiles are lead and contain two
to four percent antimony.
In addition to the law of war prohibition on superfluous
injury, there exists the Hague Declaration Concerning Expanding
Bullets of 29 July 1899.23 This treaty prohibits the use in
international armed conflict "of bullets which expand or flatten
easily in the human body, such as bullets with a hard envelope
which does not entirely cover the core or is pierced with incisions."
The United States is not a party to this declaration, which
was intended to prohibit the so-called "dum-dum" projectile
manufactured as the Mark IV caliber .303 round in the late
Nineteenth Century by the British at its arsenal near Calcutta.
The United States has, however, taken the position that it will
adhere to the terms of the declaration to the extent that its application
is consistent with the object and purpose of the prohibition
on superfluous injury contained in Article 23(e) of the
Annex to the 1907 Hague Convention IV.
As discussed earlier, the shotgun, with its capability for
inflicting multiple wounds, does not violate the prohibition on
superfluous injury. A separate question is whether buckshot
projectiles violate the prohibition contained in the 1899 Hague
Declaration and, if so, whether the United States would be
legally obligated to refrain from their use.
Comments on the legality of shotguns in manuals and opinions
of the armed services have supported the intent of the 1899
Hague Declaration. An Army field manual from 1956 states
that the prohibition on superfluous injury in Article 23(e) of the
Annex to the 1907 Hague Declaration and State usage "has . . .
established the illegality of . . . the scoring of the surface or the
filing off of the ends of the hard cases of bullets."24 In further
interpretation, a 1960 opinion of The Judge Advocate General
21. The participating States Parties were: Australia, Argentina, Austria, Belarus, Belgium, Brazil, Bulgaria, Canada, China, Croatia, Cuba, Cyprus, the Czech Republic,
Denmark, Ecuador, Finland, France, Germany, Greece, Guatemala, Hungary, India, Ireland, Israel, Italy, Japan, Laos, Liechtenstein, Malta, Mexico, Mongolia,
the Netherlands, New Zealand, Norway, Pakistan, Romania, the Russian Federation, Slovakia, Slovenia, South Africa, Spain, Sweden, Switzerland, Ukraine, the
United Kingdom, the United States, and Uruguay.
22. U.S. DEP’T OF NAVY, NAVSEA SWO10-AD-GTP-010, TECHNICAL MANUAL, SMALL ARMS AND SPECIAL WARFARE AMMUNITION 4-13 (1 May 1995). The requirements
document for the Combat Shotgun also lists No. 7 1/2 shot and No. 9 shot, while the Navy M257 round contains No. 4 shot. Each is substantially smaller than No.
00 buckshot, and even less likely to deform on impact with soft tissue, hence the focus on the No. 00 buckshot round.
23. See supra note 19.
24. U.S. DEP’T OF ARMY, FIELD MANUAL 27-10, THE LAW OF ARMED CONFLICT, para. 34 (1956).
OCTOBER 1997 THE ARMY LAWYER • DA PAM 27-50-299 23
[T]he legality of the use of shotguns depends
upon the nature of the shot employed and its
effect on a soft target . . . . The use of shotgun
projectiles sufficiently jacketed to prevent
expansion or flattening upon penetration of a
human body and shot cartridges with chilled
shot25 regular in shape would not constitute
violations of the laws of war.26
This statement was reaffirmed in opinions of The Judge
Advocate General in 196127 and 1964,28 and is repeated in
Department of the Army Pamphlet (DA Pam) 27-161-2.29
While clearly stated, the statement apparently has resulted in
some misunderstanding. The language previously quoted from
the German law of war manual, which relied upon the language
of DA Pam 27-161-2, suggests that its author incorrectly
assumed that any No. 00 buck shot projectile would deform
easily,30 performing in a manner similar to the dum-dum bullet
prohibited by the 1899 Hague Declaration. The issue is how
No. 00 buckshot projectiles perform on impact in soft tissue and
whether their performance is consistent with the law of war
obligations of the United States, as enunciated in previous opinions
of The Judge Advocate General.
Characteristics and Wound Ballistic Performance
of 00 Buck Projectiles
A pure lead No. 00 buckshot projectile has not been used by
the United States military for more than three decades, if at all.
Tests conducted at Frankford Arsenal in 1962 to improve military
shotgun ammunition determined that soft lead shot
deformed during setback as the shell fired, flattening on one or
more sides. It suffered further flattening and deformation as it
accelerated down the barrel, resulting in a worsened ballistic
coefficient, erratic ballistic flight paths, increased dispersion,
poor pattern uniformity, and excessive velocity loss. The deformation
of soft lead projectiles also causes a reduction in the
penetration of soft tissue.31
Through the addition of two to four percent antimony, the
undesirable ballistics of pure lead projectiles are reduced, shot
dispersion is decreased, the shot is more evenly distributed
throughout the pattern, and the shot has a higher terminal velocity.
Long range accuracy and terminal performance are
enhanced by maintaining spherical shot shape. The question is
whether lead-and-antimony buckshot expands or flattens easily
in a manner inconsistent with the prohibition contained in the
1899 Hague Declaration and previous opinions of The Judge
Wound ballistics has advanced substantially over the past
fifteen years, and a clearer picture exists today than may have
been possible previously. Wound ballistics tests conducted
over the past decade establish that lead-and-antimony buckshot
may deform mildly upon impact with soft tissue at close range,
but it does not expand or flatten easily. Some deformation is
likely with any lawful military rifle projectile, including fullmetal
jacketed bullets.32 Lead-and-antimony shotgun buckshot
(or shot) do not mushroom in the way the dum-dum bullet performed.
The prohibition in the 1899 Hague Declaration on projectiles
that "flatten or deform easily" constitutes acknowledgment
of the inevitability of some deformation, and it does not prohibit
projectiles that may deform mildly in limited circumstances.
Unlike the dum-dum bullet, the lead-and-antimony
No. 00 buckshot does not rely upon expansion to increase its
wounding effect and, as explained, has been developed to minimize
any change in its spherical shape to increase perfor-
25. There is no industry-wide or international law definition for "chilled shot." It commonly is used to refer to hardened shot. Shot are hardened by a lead-andantimony
mixture to reduce deformation.
26. Op. OTJAG, Army, JAGW 1960/1305 (4 Jan. 1961) [hereinafter JAGW 1960/1305].
27. Use of Shotguns in Conventional or Unconventional Warfare, Op. OTJAG, Army, JAGW 1961/1210 (11 Sept. 1961).
28. Op. OTJAG, Army, JAGW 1964/1333 (19 Aug. 1964).
29. U.S. DEP’T OF ARMY, PAM. 27-161-2, INTERNATIONAL LAW, VOLUME II (Oct. 1962).
30. This statement is based on the author’s correspondence with the author of the German manual. It also was determined that its author erroneously relied upon the
statement in Department of the Army Pamphlet 27-161-2 that "the United States Army does not now issue shotguns to troops for combat use" as evidence of lack of
justification for their combat use. See id.; JAGW 1960/1305, supra note 26. As United States forces were not engaged in armed conflict at the time that opinion was
prepared, the statement is a non sequitur. As the history of combat shotgun use indicates, shotguns are issued on a mission-specific, as-needed basis. Lack of issue
of shotguns in 1961 was not based upon an assumption by the United States that combat shotgun use was either unlawful or unjustified. In 1961, the United States
Army was performing deterrence missions in Europe and Korea against threats by the conventional forces of the Warsaw Pact and North Korea, respectively, and
shotguns would have been of limited effect. As the historical summary explains, United States forces were equipped with shotguns upon conventional force entry
into Vietnam in 1965.
31. See Swearengen, supra note 5, at 459; Gus Cotey, Jr., Number 1 Buckshot, The Number 1 Choice, WOUND BALLISTICS REV. 10-18 (1996); Duncan MacPherson,
Technical Comment on Buckshot Loads, WOUND BALLISTICS REV. 19-21 (1996).
32. See, e.g., Ashley W. Oughterson et al., Study of Wound Ballistics—Bouganville Campaign, in WOUND BALLISTICS, supra note 15, at 383, 396, figs. 190, 204; Martin
L. Fackler, MD, Wounding Patterns for Military Bullets, INT’L DEF. REV. 55-64 (Jan. 1989).
OCTOBER 1997 THE ARMY LAWYER • DA-PAM 27-50-299 24
mance, range, and target penetration. Wound profiles and
recovered buckshot confirm the nominal change in shape that
may occur. The change is insignificant, and a No. 00 buckshot
projectile is unlikely to result in a wound as severe as that
caused at the same range by, for example, 5.45 x 45mm AK-74;
5.56 x 45mm M855; 7.62 x 39mm AK-47; or 7.62 x 51mm fullmetal
jacket projectiles, today’s commonly-used military
Conclusion as to the Second Legal Issue
Lead-and-antimony buckshot does not "expand or flatten
easily," and therefore violates neither the 1899 Hague Declaration
nor the criteria for legality previously articulated in opinions
of The Judge Advocate General, United States Army.
The combat shotgun and its lead-and-antimony buckshot (or
shot) ammunition are consistent with the law of war obligations
of the United States.
The memorandum from which this article is derived was
coordinated with the offices of the Judge Advocates General of
the Air Force and Navy; Army General Counsel; the Staff
Judge Advocate to the Commandant of the Marine Corps; the
Office of the General Counsel, Department of Defense; and the
Office of the Legal Adviser, Department of State, each of whom
concurred with its analysis and conclusions.
33. See NATO, EMERGENCY WAR SURGERY 23-25, 29, 31 (2d United States revision, 1988) (providing wound profiles for projectiles); Cotey, supra note 31, at 14
(illustrating recovered buckshot).