By Robert Goldman
The Biden administration announced on July 7, 2023, that it would send cluster bombs to Ukraine – a deeply controversial move given the munition is prohibited by more than 120 countries because of risks to civilian populations.
The U.S. has been here before. It provided Saudi Arabia with cluster munitions – which contain bomblets that can scatter across a wide area, often not exploding until later – during the kingdom’s military intervention in Yemen.
Washington suspended sales of cluster bombs to the Saudis in 2016 following mounting concern over the toll they were taking on civilian lives. But the U.S. is still holding out from joining an international ban on cluster bombs.
As a scholar of the law of war, I know that cluster bombs highlight a reality about the use and regulation of weapons, even those that can cause widespread civilian suffering: These munitions are not in themselves illegal, but their usage can be. Furthermore, the decision by the U.S. to provide Ukraine with cluster bombs could weaken the argument against others’ doing likewise. And that, in turn, could increase the chances of cluster bombs’ being deployed illegally.
Effective or indiscriminate?
Cluster munitions have been part of nations’ arsenals since World War II. Delivered by air or ground artillery, they have been used by the United States in Laos and Vietnam during the Vietnam War, Israel in southern Lebanon, the U.S. and U.K. in Iraq, Russia and Syria in the ongoing Syrian civil war, and the Saudis in Yemen. And now they are being deployed in Ukraine.
If deployed responsibly, they can be an effective military tool. Because they can spread hundreds of bomblets across a wide area, they can prove a potent weapon against concentrations of enemy troops and their weapons on a battlefield. In 2017, a U.S. Department of Defense memo said cluster munitions provided a “necessary capability” when confronted with “massed formation of enemy forces, individual targets dispersed over a defined area, targets whose precise location are not known, and time-sensitive or moving targets.” And on June 22, 2023, it was reported that the Department of Defense has concluded that cluster bombs would be useful if deployed against “dug-in” Russian positions in Ukraine.
Indeed, the Department of Defense argued that in some limited circumstances cluster bombs can be less destructive to civilians. In Vietnam, the U.S. sanctioned the use of cluster bombs – over more powerful bombs – to disrupt transport links and enemy positions while minimizing the risk of destroying nearby dikes, which would have flooded rice fields and caused widespread suffering to villagers.
Still, their use has always been controversial. The problem is that not all the bomblets explode on impact. Many remain on the ground, unexploded until they are later disturbed – and that increases the chances of civilians’ being maimed or killed. Their use in urban settings is particularly problematic, as they cannot be directed at a specific military target and are just as likely to strike civilians and their homes.
Cluster bombs under international law
Concern over the risk to civilian harm led in 2008 to a Convention on Cluster Munitions, which bans their use, production or sale by member states.
But as of 2023, the convention is legally binding for only the 123 states that are signatories – and Ukraine, Russia and the U.S. are not among them. Nor can they – or any of the other countries yet to sign up to the convention – be compelled to join the ban.
As such, there is no legal reason that Ukraine or Russia cannot deploy cluster bombs in the current conflict – as both have done since the invasion of February 2022. Nor is there any legal reason the Biden administration can’t sell the munitions to Ukraine.
But there are laws that set out how cluster bombs can be used, and how they must not.
The relevant part of international humanitarian law here is 1977’s Additional Protocol I to the Geneva Conventions, which both Ukraine and Russia have ratified. The additional protocol sets out rules the warring parties must observe to limit harm to civilians. Acknowledging that civilian deaths are an inevitable part of war, Article 51 of Additional Protocol I prohibits “indiscrimate” attacks. Such attacks include those employing a weapon that cannot be directed at a specific military target or of such a nature to strike military targets and civilians and civilian objects without distinction.
Meanwhile, Article 57 of the additional protocol stresses that attacking armies have a duty of care to spare civilian populations. This includes taking “all feasible precautions in the choice of means and method of attack.”
Neither article specifies any weapons deemed off-limits. Rather, it is how the weapons are used that determines whether the attack constitutes an indiscriminate one and hence a crime under international law.
More than an ‘optical’ risk?
Even if cluster bombs are not inherently indiscriminate – a claim that advocates of an international ban put forward – their use in urban settings greatly increases the chance of civilian harm. In 2021, 97% of cluster bomb casualties were civilians, two-thirds of whom were children. And the experience of cluster bomb use in Syria and Yemen shows that it can be difficult to hold governments to account.
Which is why Ukraine’s request for U.S. cluster munitions has led to concerns. The Cluster Munitions Monitor, which logs international use of the bombs, found that as of August 2022, Ukraine was the only active conflict zone where cluster bombs were being deployed – with Russia using the weapon “extensively” since its invasion, and Ukraine also deploying cluster bombs on a handful of occasions.
Ukraine reportedly sought some of the United States’ stockpile of Cold War-era MK-20 cluster bombs to drop on Russian positions via drones. The White House had previously aired “concern” over the transfer.
In announcing the decision to send U.S.-made cluster bombs to Ukraine, Jake Sullivan, President Joe Biden’s national security adviser, noted that “cluster munitions create a risk of civilian harm from unexploded ordnance,” adding: “This is why we’ve deferred the decision for as long as we could.”
The Biden administration’s earlier hesitancy was reportedly over the “optics” of selling cluster bombs and that it may introducing a wedge between the U.S. and other NATO countries over the weapon’s use.
Certainly, there would be very little legal risk under international law of providing cluster bombs to Ukraine – or any other nation – even if that country were to use the weapon illegally.
There is no case I know of in which a state has been found legally responsible for providing weapons to another that flagrantly misuses them – there is no equivalent to efforts in the U.S. seeking to hold gun manufacturers legally responsible for mass shootings, or state “dram shop laws” that hold the suppliers of alcohol culpable for the actions of an inebriated driver.
Yet one of the things that worried people in Congress regarding the sale of cluster bombs to Saudi Arabia was that the Saudis’ consistently indiscriminate use of those weapons in Yemen could be seen at home and abroad as making the U.S. complicit in those violations.
I would argue that it became difficult for Washington to continue to supply the Saudis on moral ground. But still, there was and is presently no clear-cut legal obligation for the U.S. to stop supplying other nations with cluster bombs.
In my opinion, it is highly unlikely that Ukraine will deliberately use U.S.-supplied cluster munitions to target civilians and their environs.
And Ukraine provided “written assurances that it is going to use these in a very careful way,” Sullivan said in announcing the transfer.
Nonetheless, providing Ukraine with cluster weapons could serve to destigmatize them and runs counter to international efforts to end their use. And that, in turn, could encourage – or excuse – their use by other states that may be less responsible.
Robert Goldman is Professor of Law at American University.
Pogo says
@Robert Goldman
Your remarks are all well and fine. Well intended, no doubt.
I propose to you that the spread of American fast food is a far greater menace to human life — everywhere.
Jimbo99 says
The Biden (VPOTUS, POTUS & Family) will be forever linked to Ukraine corruption, any wonder he’s back over there as POTUS ? Biden’s been milking that cash cow for going on a dozen years now ?
DaleL says
Sending cluster munitions to Ukraine is not immoral for two primary reasons:
1. Ukraine, Russia and the U.S. are not signatories to the ban on cluster munitions.
2. Russia signed the Budapest Memorandum in 1994 which recognized Ukraine’s borders, including Crimea. Russia launched a war of aggression against Ukraine in 2014 and occupied Crimea and part of the eastern Ukraine. Russia renewed that war of aggression in 2020. A war of aggression is a war crime of the most serious nature. All subsequent war crimes committed in the conflict derive from the war of aggression. The US also signed the Budapest Memorandum. The US has a moral obligation to provide Ukraine with any and all means to defend itself. That includes cluster munitions.
Dennis C Rathsam says
This is just another way Biden shows the American people how disasterous his presidency really is. Scandals, lies, & failed policies are the earmark of his administration. Biden has been wrong on everything for the last 3 years. From the economy, to crime,to the border. Americans throughout this great country, are struggling to make ends meet! Biden has lost touch with reality. He proves everyday he doesnt care about us. I was better off 4 years ago, and our country was a lot safer too!
Robert Joseph Fortier says
What a terrible story to have to read…
Makes one wonder just how long mankind will last.
Pierre Tristam says
The fact that the US is not a signatory is itself immoral. By your logic, nukes would legitimately be next.
Pogo says
@DaleL
Thank you.
And for God’s sake, this choice couldn’t be clearer: Putin, or Ukraine.
Never again means nothing to the dead.
https://www.google.com/search?q=russian+war+crimes+in+ukraine
ASF says
If this weaponry ends up the hands of America’s enemies, we will most certainly be sorry. So, will the EU which could be more directly impacted.
Some of the weaponry that NATO members have been sending to the Ukraine is already being used against America’s allies and interests in The Middle East.
The dude says
Ok Boomer.
We were all better off 4 years ago… right before the trump virus gave us the trump economy, with trump supply chain issues and then runaway trump inflation.
John Stove says
Take your tinfoil hat off for a moment….the twice impeached, twice indicted previous president who illegally took classified documents, denied military aid to Ukraine when this whole war began and basically lied about everything put us all at great risk. Trumpo will forever be remembered as the lying, traitorous con man that he is. Can’t wait for the third indictment regarding Georgia election interference and the fourth indictment regarding incited a violent riot on January 6th.
The Republican Party is eating itself alive with all these fools
Sherry says
@jimbo. . . Post a link to “credible” proof regarding the Bidens, or we will continue to know that you can do nothing but repeat FOX BS.
Sherry says
@dennis. . . screaming BS into the void again. . . still pathetic. Do try and escape the FOX cult to find a fact based news outlet: PBS, APNews, BBC. Wouldn’t you like to be considered just a tiny bit reasonable?
Sherry says
Hi Robert. . . my thoughts also.
JimBob says
Are you suggesting the end of mankind would be a bad thing?
Skibum says
I was watching a news segment just this morning about the U.S. giving cluster munitions to the Ukraine military, and how there are currently so many concerns about the morality of doing that. Listening to the news report, I kept telling myself that I really wanted to hear from retired U.S. Army Lt. Colonel Alexander Vindman regarding his perspective on this issue. And lo and behold, just as I was thinking that, they brought him on the air to give his take, and he defended the president’s decision to provide the cluster munitions to Ukraine. Some of the reasons he was supportive of this latest arms shipment, despite the fact that many countries have agreed to prohibit the cluster munitions, was that Russia continues to use cluster munitions against Ukrainian military troops AND civilian areas, and their cluster munitions are horribly made and have a reported 50% failure rate, littering Ukraine with unspent and very dangerous bombs that could later explode and further endanger civilians. He also said that the Russian military continues to mine many areas in Ukraine, and if the Ukraine military doesn’t step up their counter-offensive and stop that mining, the Russians will be able to bury millions more mines in the ground in parts of Ukraine. Vindman said that cluster munitions are very effective at detonating these buried mines. And lastly, he acknowledged the agreement between the U.S. and Ukraine that we would only be sending them cluster munitions that have been tested and have less than a 2.5% rate of failure along with other restrictions. Lt. Col. Vindman is an American hero and I value his opinion and assessment of Ukraine’s needs. So I have to side with him on this issue and believe that the president has weighed all of the pros and cons and has come to the right decision, however tough it must have been to get to “yes”. I continue to believe that America needs to do whatever is necessary, and to provide Ukraine with the arms and munitions it believes it needs to overcome and defeat the Russian military invasion, and stop Putin’s aggression into Europe, because the world’s situation will only get worse if Putin is not stopped in Ukraine.
Bill C says
Wasn’t the article about cluster bombs? What’s that… Biden has lost touch with reality? hmmm…
DaleL says
Ukraine gave up its Soviet Era nukes as part of the Budapest Memorandum. According to stopclustermunitions.org, Russia has used cluster bombs in Ukraine since 2014. Let us be clear, Ukraine deserves the right to defend itself. Putin’s Russia is evil.
Geezer says
“Biden has lost touch with reality.”
So your guy Trump was “in touch?”
In touch with what—state documents next to a Mar-A-Lago toilet bowl?
“Failed policies are the earmark of his administration.”
Oh my, not paying attention in primary school haunts you to this very day…
But I was taught to not make fun of folks like you…
In closing,
Thoughts and prayers!
Ray W. says
I recall several gullible FlaglerLive commenters writing in after listening last October to Tucker Carlson claim that the United States would run out of diesel fuel in 25 days?
Garbage in, garbage out!
DaleL says
Both Russia and Ukraine inherited large stocks of Soviet era cluster munitions. Both countries have been using cluster bombs. The vast majority of civilian casualties are the direct result of indiscriminate Russian bombardments.
“Russia has killed hundreds of civilians in the north-eastern Ukrainian city of Kharkiv using indiscriminate shelling and widely-banned cluster munitions, according to new research by Amnesty International.” https://www.bbc.com/news/world-europe-61778433
Sherry says
Thanks so much for your well reasoned analysis Skibum. It really seems to be a situation that “shoulda/woulda/coulda” been prevented years ago by signing the treaty. . . but, then again, Russia refused to. Therefore, there really is no clearly correct thing to do, given the current circumstances. Like you said, if this war continues to drag on. . . it only gets worse and worse for all of Europe, and the entire world.
It brings to mind the way Republicans continue to allow fascism to spread in Florida at all levels of government and society. That mental illness is spreading like wild fire and threatens to choke off our entire democracy. . . all in the name of lock step voting that big “R” on the ballot. Party Over Sanity! Party Over Democracy! We will all continue to rue the day!
Greater good says
War is immoral. The use of cluster munitions will actually save Ukranian lives on the battlefield. After the Russian occupiers are driven from Ukraine, the Country will have to be de-mined. This is a fact of war as well.