Friday, 07 July 2023 21:06

The US’s controversial decision to send cluster munitions to Ukraine, explained

US President Joe Biden exits the White House on his way to Marine One on the South Lawn on July 6, 2023, in Washington, DC.

The United States is going to provide Ukraine with cluster bombs, a controversial decision because of the threat these indiscriminate weapons can be to civilian populations.

Ukraine has been seeking cluster munitions for months to help in its counteroffensive, seeing them as a tool to help dislodge Russia from its dug-in fortifications and to mitigate Kyiv’s constraints on artillery and other equipment.

The Biden administration has so far resisted sending these increasingly taboo conventional weapons, but National Security Adviser Jake Sullivan confirmed Friday that the US will transfer stocks to Ukraine. “Ukraine would not be using these munitions in some foreign land,” Sullivan said at the White House. “This is their country they’re defending. These are their citizens they’re protecting and they are motivated to use any weapon system they have in a way that minimizes risks to those citizens.”

Cluster munitions — or dual-purpose improved conventional munitions (DPICMs), as they’re officially known — are haphazard and notoriously faulty. Once fired, they release dozens of bomblets in the air that spread out and saturate football-field- or city-block-size areas. The direction or targets for those bomblets can’t be controlled, and they don’t always immediately explode, turning into de facto land mines. For those reasons, they are particularly dangerous to civilians during war, but also long after a conflict ends.

“They pose a huge danger to kids that pick them up; to farmers with their plows; to refugees returning to their homes, digging through the rubble; all sorts of civilians,” said Bonnie Docherty, senior researcher in the arms division at Human Rights Watch and the director of the Armed Conflict and Civilian Protection Initiative at Harvard Law School. “There’s a whole host of long-term dangers, as well as the immediate dangers at the time of attack.”

A 2008 international treaty bans the use, production, transfer, and stockpile of these weapons. More than 100 countries have signed on to that Convention on Cluster Munitions, including many NATO allies that are also supplying weapons to Ukraine. The United States, Russia, and Ukraine, among others, have not joined that treaty.

The US, with one exception, stopped the use of cluster bombs in 2003, but it has not outright banned their use by the American military. Since neither Ukraine nor the US are members of the treaty, there is nothing technically illegal about the Biden administration’s potential transfer of cluster munitions to Ukraine. (The White House and the Defense Department did not respond to a request for comment.)

But the decision is still quite fraught and complicated. Russia has faced international condemnation — including from the White House — for how it has used cluster munitions in Ukraine. Even as Ukraine wants them for its counteroffensive operations, Kyiv and Washington may cede some of the moral high ground in an effort to achieve a battlefield edge. It may also cause tension among NATO allies, who’ve largely, and often deliberately, tried to move together on weapons commitments to Ukraine.

The question of whether the United States should transfer cluster bombs to Ukraine is very different than past Ukraine weapons debates. With main battle tanks or F-16s or longer-range missiles (potentially the next major weapons gift), the calculus has largely been about what may provoke Moscow, and whether Ukrainian forces can make effective use of those tools.

The cluster munitions debate stands apart from that. It is instead a test of the US’s own adherence to international consensus — and how this decision might undermine the broader stigma against the use of these weapons.

“It’s really about how is everybody else going to respond to this, NATO allies and the broader international community,” said Jennifer Erickson, an international security and arms control expert at Boston College. “It’s about testing what has been seen as a broader international norm, rather than a question of: ‘Well, if we sell that tank, Russia will take that as an escalation.’ This seems just a different conversation entirely.”

Why cluster munitions are so controversial

Russia’s use of cluster munitions in Ukraine, including in civilian areas, has been well-documented throughout the war and widely condemned; the bombs have landed near hospitals and reportedly killed people waiting in line at a cash machine. On Thursday, Human Rights Watch issued a report that said Russia has “extensively” used these weapons, causing many civilian deaths and injuries.

Ukraine has used them, too, if to a far lesser extent. But, according to this same HRW report, that has also caused civilian casualties, including in Izium, a city in eastern Ukraine that Kyiv liberated in 2022. (Ukraine’s armed forces have denied this allegation, and said they abide by humanitarian law.)

Ukraine is asking for cluster bombs now because it believes it needs them for its sluggish counteroffensive. Some US defense officials and US lawmakers agree. Ukrainian forces are in desperate need of munitions, expending artillery at a rate faster than the US and the Western allies can replace it. They are also facing shortages of other equipment and manpower.

The United States has a bunch of cluster munitions sitting around in storage, and many of these can be fired from weapons systems, like howitzers, that Ukraine already has. Even as Ukraine acknowledges these weapons are controversial globally, the overriding impetus right now is pushing back Russia. Its argument is that using cluster munitions now could give Ukraine a breakthrough, potentially shifting momentum in the war. Long-term Russian occupation or ongoing war is bigger threat, including to Ukrainian civilians, and using these weapons now will save more lives.

But all of this is something of a slippery slope, and a big reason weapons bans exist in the first place. Just because something has military utility does not eliminate the potential immediate and long-term risks to both soldiers and civilians.

The battlefields of Ukraine are roadways and fields and villages and cities. Even if these towns are empty, even if the bombs are targeted at Russian trenches, because the so-called dud rate for the submunitions can be high, unexploded bomblets can linger. The Cluster Munition Monitor 2022 found that in 2021, civilians represented 97 percent of casualties (144 people) from unexploded submunitions. More than 60 percent were children in cases where the ages were known. People in Vietnam and Laos are still finding the remnants of cluster bombs dropped by the US decades ago.

The international ban against the use of cluster munitions is not as strong, or even as universal, as, say, that against biological or chemical weapons. But it is among a class of weapons, along with anti-personnel mines, that human rights and disarmament advocates have targeted for their particular risks to noncombatants. In the past decades, the stigma against cluster bombs has grown, especially after their controversial use, including by Israel in Lebanon in 2006 and the Saudi-led coalition in Yemen. As of August 2022, according to the Cluster Munitions Monitor, Ukraine was the only country that recorded active attacks by cluster munitions, though they’ve been documented in early 2021 in Syria.

The United States has not used cluster munitions in combat since 2003 in Iraq, with the exception of a strike in Yemen in 2009, which resulted in civilian casualties. The US stopped budgeting for these weapons for US military use around 2007, and effectively stopped their manufacture altogether around 2016.

But the US has continued to insist on the military necessity of cluster bombs, even as it’s basically stopped deploying them and making them. Past administrations have made policy efforts to limit the use of certain unreliable types, including a Pentagon directive in 2008 requiring a 10-year phaseout of cluster munitions that had a “dud rate” greater than 1 percent. This would have effectively eliminated a huge portion of the US stockpile. In 2009, Congress also restricted the export of this category of cluster bombs.

Even as the US stayed outside the treaty, these moves were an apparent recognition of the growing international norm against the use of cluster bombs, and of the limits in their combat effectiveness. (Investigations have documented the US killing its own forces with cluster bombs.) But, in 2017, the Trump administration issued a new directive that basically said the US would not meet that phaseout deadline, and that while it would seek to replace unreliable cluster munitions, it would retain those current stockpiles until that time. After that, Congress banned the production, use, or export of cluster munitions with a dud rate beyond 1 percent. The Biden administration, in approving this transfer to Ukraine, would go around that law.

Why this isn’t like any other US weapons transfer to Ukraine

There are different kinds of cluster munitions, of different sizes, but at least one estimate says the US has some 4.7 million in its inventories, according to the Washington Post.

“I will say that we have multiple variants of DPICMs in our stocks and the ones that we are considering providing would not include older variants with dud rates that are higher than 2.35 percent,” Pentagon press secretary Brig. Gen. Pat Ryder said at a briefing Thursday. “We are aware of reports out there from several decades ago that indicate that certain 155-mm DPICMs have higher dud rates, so we would be carefully selecting rounds with lower dud rates for which we have ... recent testing data.”

In some ways, this is a recognition of how controversial and delicate this decision is and why the United States had not already gone ahead and done it.

Many NATO allies are party to the cluster munitions ban, including Germany and France. As experts pointed out, one of the treaty obligations requires parties to “promote the norms” against use and to “make its best efforts” to discourage non-treaty members from using cluster bombs. This puts some NATO states in a bit of a bind, as they probably should, at the very least, strongly scold the United States and Ukraine if they take this step. (At the same time, it’s also worth noting that the convention does permit treaty members to “cooperate militarily” with non-members, a carveout that more or less was made for NATO.)

But for an alliance that very much wants to project unity and cohesion — and very much wants to do it at its big summit in Lithuania next week — this adds a confusing wrinkle. Ryder, at the Pentagon briefing Thursday, declined to say whether the US had consulted with its allies about this. Germany’s foreign minister indicated that Berlin will continue to adhere to the treaty.

Jens Stoltenberg, NATO secretary-general, said Friday that NATO itself does not have a stance, and it is up to individual governments to decide. But, he added: “We are facing a brutal war, and we have to remember this brutality is reflected, that every day we see casualties, and that cluster munitions are used by both sides. And Russia used cluster munitions to invade another country. Ukraine is using cluster munitions to defend itself.”

It’s a hint, at least, that the alliance members may not put up real opposition, although how this will play out within NATO is still a bit unclear. But the Biden’s administration decision will have much wider implications. Russia’s indiscriminate use of cluster munitions in Ukraine has become a symbol of Moscow’s brutality and humanitarian violations. And while Ukraine has said it will use them only to target Russian military positions, with a weapon as unreliable as cluster bombs, the risks remain.

The United States and its partners have had lots of long, drawn-out deliberations over weapons transfer to Ukraine, but this one is distinctively different.

“The US has sort of been trying to walk this fine line between following a norm — although it’s not a member of this treaty — [and] providing Ukraine with what Ukraine thinks it needs and says it needs to effectively fight this war,” Erickson said. But at some point, this is a yes or no decision, a line drawn. “You have to fall on one side of it or the other,” she added.

With this decision, the Biden administration is moving to the other side of the line. “The United States has preferred to stand outside that consensus, but it’s also tried to wink at being inside the consensus,” said Stephen Pomper, chief of policy for the International Crisis Group and former human rights officials in the Obama administration.

This undermines US credibility, and it is a reminder to the world that the US has a long tradition of abiding by international norms when it suits them, and then breaking them when it doesn’t. And so this decision may ultimately undermine broader disarmament efforts and efforts to make the world, if not free from war, safer for the civilians caught up in it. “The Biden administration is signaling that it just does not prioritize a global effort to try and rein in cluster munitions,” Pomper said.

Update, July 7, 2:45 pm ET: This story has been updated with the US’s confirmation Friday that it will send cluster munitions to Ukraine.