Making products to kill human beings involves some complicated issues.
First, humans can be clever and hard to kill.
Second, as a general rule, we humans are not supposed to kill one another.
The first challenge is a technical challenge.
The second challenge is a legal, moral, and political challenge.
Orbital ATK, located in Minnesota, won a federal contract to design and sell a killing device to fight entrenched enemy combatants. From the complaint, we learn that entrenched enemies are described as “in defilade,” meaning “entrenched in a protected position” (protected by a brick wall, for example).
We learn from Orbital ATK complaint that weapons makers have developed the technology to kill people “in defilade.” The basic idea is that an explosive device can be propelled through the air and can be detonated, mid-air, with breath-taking precision (literally and figuratively). So, for example, if an enemy combatant is behind a two-foot thick brick wall 213 feet away from our soldier, our soldier might aim the weapon to detonate 215 feet and six inches away and one foot to the side of the wall. The explosive fragments would essentially “turn the corner,” reaching the enemy in defilade. Very generally, this is the technology behind Orbital ATK’s XM25 weapon system.
Orbital ATK subcontracted with Defendant H & K GmbH, a German company, on this weapons contract. Surprisingly, H & K, having done considerable work on the weapon system, and having collected over $35 million, allegedly stopped cooperating on the project requiring assurance that the weapon would not be used in such as way as to violate the St. Petersburg Declaration of 1868, which could expose H & K to potential criminal liability (i.e. war crimes) (at least in H & K’s view).
This will be an interesting case to follow. It would likely be impractical for U.S. soldiers in the field of battle to get permission from H & K (which, presumably, would have to get legal advice) before firing the XM25 weapon system.
But we have to ask: what took so long for H & K to figure out its reservations about the weapon system and the potential violation of a 149 year-old treaty?