Published by The Lawfare Institute
in Cooperation With
Published by Martinus Nijhoff Publishers (2011)
Reviewed by His Serenity, The Book Review Editor
Flechettes are an antipersonnel weapon consisting of many small, solid metal projectiles with fins -- hence the name "flechettes." The fins give the metal projectiles greater stability in flight and more penetrative impact than would be true of other shrapnel fragments or round metal balls, once packed into an explosive canister and launched from an aerial platform or ground weapon such as artillery.
The weapon in its modern form dates back to World War I, when it was one of the first weapons used by the then-novel airplane. These early aviators simply emptied buckets of flechettes onto enemy infantry troops below. Dispersed in this way, without a modern explosive charge or shell, their lethality was a function of the acceleration of gravity to drive them into, or even through, the body of an exposed soldier -- noiselessly and without warning. (Though there are anti-tank flechette weapons, nearly all the discussion and controversy around them is as an antipersonnel weapon.) The weapon was not widely used in World War II. But it re-emerged in the Vietnam War, in artillery or air-delivered form, as US forces sought ways to defend artillery or other lightly equipped and staffed outposts against swarming attacks of Vietcong or North Vietnamese infantry that threatened to overrun a defensive perimeter.
In the hands of Israeli legal academic Eitan Barak and his informative and analytically sophisticated book, Deadly Metal Rain: The Legality of Flechette Weapons in International Law (A reappraisal following Israel's use of flechettes in the Gaza Strip (2001-2009), the otherwise largely obscure history of flechette weapons is situated within three interlinked narratives. The first is that flechette weapons illustrate certain long-running issues across the history of the law of weapons (and the Convention on Certain Conventional Weapons (CCW) particularly). Among these is what qualifies a weapon as particularly worthy not just of regulation in its acceptable uses and battlefield environments, but of prohibition. Professor Barak's account shows how flechettes were nominated by some in earlier debates as a weapon to be prohibited, and yet they never in fact were. Some viewed the weapon as particularly reprehensible; yet it proved difficult to point to features of the weapon, as such, that made it either inherently indiscriminate with respect to civilians or of a nature so as to cause superfluous injury or unnecessary suffering to combatants, especially by comparison to other weapons accepted as lawful. Moreover, as solid pieces of metal, flechettes did not create explosive remnants of war posing risks after battle (a focus of arms control advocates that have sought bans of weapons such as antipersonnel landmines or cluster munitions, partly on these grounds). The question of weapons law raised by flechettes over the long run has thus seemed to be not one of prohibition but instead regulation of use. Regulation of use, rather than prohibition of the weapon, in fact is the usual situation for weapons considered under weapons law in the law of armed conflict; few weapons are inherently unlawful, as such, as Michael Schmitt and Jeffrey Thurner point out in a recent article.
Prohibition or regulation, one might draw as a general lesson (and admittedly extrapolating quite a bit) from Professor Barak's careful study of flechettes, is a debate that takes place across the spectrum of weapons, from the simple to the technologically complex: much the same debate is taking place today around autonomous or highly automated weapons. Another long term issue running across the history of weapons law, and illustrated by flechettes, is whether the legitimacy of anti-personnel weapons designed to take out a group of combatants is perennial, because of the requirements of warfare, or on the long term wane by reason of a combination of humanitarian concerns and technological progress. The argument against such weapons, of course, is that the same weapon that takes out a concentration of combatants might take out a group of civilians.
Again, looking at flechettes as an illustrative example, if the trajectory of weapon design in the past several decades has been toward greater precision and target discrimination, to the point of targeted killing of discrete individuals, the very idea of anti-personnel weapons designed to destroy a concentration of forces seems to run contrary to that, and in a sense contrary to the progress of the law of weapons ever towards increased discrimination. The difficulty with that, however, is that both the threats and opportunities posed by concentrations of enemy forces means that the military necessity for anti-personnel weapons able to destroy a group has not gone away, whether in Vietnam, Gaza, or future battlefields. War will not soon be reduced, on this view, to selective, targeted, individuated killing.
The second narrative of the book is that of flechettes and their controversies, specifically with respect to policy and law surrounding the Israeli Defense Forces' use of them in Gaza in the decade of the 2000s, and Israeli court cases over those uses within the Israeli legal system. As is often the case, Israeli courts have confronted issues of international law of armed conflict within Israel's domestic legal system that few, if any other, tribunals have found themselves called upon to address. Other tribunals are not compelled to accept the reasoning or conclusions of Israel's courts, to be sure, but these opinions are one of the few sources of sophisticated legal discussion available to those wrestling with such issues.
The third narrative, finally, is how, in the case of flechettes and the IDF's use of them in Gaza, the international activist and advocacy communities pressed forward an international campaign against Israel's flechettes use in Gaza. The takeaway of this narrative is that (again, extrapolating well beyond Professor Barak's careful and closely confined analysis; he cannot be tasked with these views) the international advocacy community creates something like a positive feedback cycle: unrelenting hostility of much of the international community to (really) any form of weapons use by Israel is deployed as a means politically to de-legitimize the weapon as such, merely by association with Israel's use of it. But, coming full circle, Israel's use of the (now) de-legitimized weapon is deployed, in turn, as still further evidence of Israel's egregious disregard of law and humanitarian concerns of IHL. And so it goes: the turn of the screw again and again.
Deadly Metal Rain: The Legality of Flechette Weapons in International Law thus might appear to the reader to be, at first glance, a narrow commentary on a narrow subject within a narrow jurisprudence. Taking all three of these distinct narratives together, however, the legal history and contemporary arguments over flechettes illustrates some important broader themes with respect to the regulation of weapons and their use.