Global Courant
Push the Biden administration to Ukraine equipped with cluster bombs has once again drawn attention to the legal and moral use of such weapons.
The US has been here before. It supplied Saudi Arabia with cluster munitions – which contain bombs that can disperse over a large area, often only exploding later – during the kingdoms military intervention in Yemen.
Washington suspended sales of cluster bombs to the Saudis in 2016 after growing concerns about the toll they took on civilian lives. But the US still is refrain from participating more than 120 countries have signed one international ban on cluster bombs.
Like a scholar of the law of warI know that cluster bombs highlight a reality about the use and regulation of weapons, even weapons that can cause widespread suffering among the civilian population: these munitions are not illegal in themselves, but their use may be.
Moreover, if the US supplies Ukraine with cluster bombs, it could weaken the argument that others are doing the same. And that, in turn, could increase the likelihood of cluster bombs being deployed illegally.
Effective or random?
Cluster munitions have been part of the arsenals of nations since World War II. Supplied by air or ground artillery, they have been used by the United States in Laos and Vietnam during the Vietnam War, Israel in South Lebanon, the US and UK in IraqRussia and Syria in the ongoing Syrian civil warand the Saudis in Yemen. And now they are deployed in Ukraine.
When deployed responsibly, they can be an effective military tool. Since they can spread hundreds of bombs over a wide area, they can prove to be a powerful weapon against concentrations of enemy forces and their weapons on a battlefield.
In 2017, a Memo from the United States Department of Defense said cluster munitions provided a “necessary capability” when faced with “massive formation of enemy forces, individual targets scattered over a defined area, targets whose precise location is unknown, and time-sensitive or moving targets.”
And on June 22 it was reported that the US Department of Defense has concluded that cluster bombs would be useful if deployed against “entrenched” Russian positions in Ukraine.
Indeed, argued the Defense Ministry that in certain limited circumstances cluster bombs may be less destructive to civilians. In Vietnam, the US approved the use of cluster bombs – rather than more powerful bombs – to disrupt transport links and enemy positions while minimizing the risk of destruction of nearby dikeswhich would have flooded paddy fields and caused much suffering to villagers.
Yet its use has always been controversial. The problem is that not all bombs explode on impact. Many remain unexploded on the ground until later disturbed – increasing the likelihood of civilians being maimed or killed.
Their use in urban environments is particularly problematic, as they cannot be targeted at a specific military target and can just as easily hit civilians and their homes.
Cluster bombs under international law
Concerns about the risk of civilian harm led to a 2008 Convention on Cluster Munitionswhich prohibits its use, production or sale by Member States.
But as of 2023, the treaty will only be legally binding on the 123 states that have signed it – and Ukraine, Russia and the US are not among them. Nor can they — or any of the other countries that have yet to sign the treaty — be forced to join the ban.
As such, there is no legal reason that Ukraine or Russia cannot deploy cluster bombs in the current conflict both have done since the February 2022 invasion. There is also no legal reason why the Biden administration cannot sell the munitions to Ukraine.
But there are laws governing how cluster bombs can be used and how not.
The relevant part of international humanitarian law here is that of 1977 Additional Protocol I to the Geneva Conventions, which both Ukraine and Russia have ratified. The additional protocol contains rules that the warring parties must adhere to in order to limit damage to civilians.
Recognizing that civilian deaths are an inevitable part of war, Article 51 of Additional Protocol I prohibits “random” attacks. Such attacks include those that use a weapon that cannot be aimed at a specific military target or that is capable of indiscriminately striking military targets and civilians and civilian objects.
In the meantime, Article 57 of the Additional Protocol stresses that attacking armies have a duty of care to spare the civilian population. This includes taking “all possible precautions in the choice of means and method of attack”.
Neither article specifies weapons that are considered off limits. Rather, it is the way the weapons are used that determines whether the attack is an indiscriminate attack and thus a crime under international law.
More than an ‘optical’ risk?
Even if cluster bombs aren’t inherently random – a claim that proponents of an international ban put forward – its use in urban environments greatly increases the likelihood of civilian harm.
2021, 97% of cluster bomb victims were civilians, two-thirds of whom were children. And the experience of using cluster bombs in Syria and Yemen shows that holding governments to account can be difficult.
Therefore, Ukraine’s request for US cluster munitions has raised concerns. The Cluster munitions monitorwhich records the international use of the bombs found that as of August 2022 Ukraine was the only active conflict zone where cluster bombs were deployed – with Russia using the weapon “extensively” since its invasion, and Ukraine also using cluster bombs on a handful of occasions.
Ukraine is reportedly seeking some of the United States’ stockpile of MK-20 Cold War cluster bombs, which it plans to drop on Russian positions via drones. The potential move has support in Congress, but the White House has so far been noncommittal — not ruling out the transfer, but also air of concern.”
The hesitation of the Biden administration is allegedly about the “opticsof selling cluster bombs and creating a wedge between the US and other NATO countries over the use of the weapon.
An Uragan cluster munitions lie in a field in Ukraine. Image: Screengrab/HRW
Certainly, there would be very little legal risk under international law to supply cluster bombs to Ukraine – or any other country – even if that country were to use the weapon illegally.
I am not aware of a single case where one state has been found legally responsible for supplying weapons to another who blatantly misuse them – there is no equivalent of trying in the US to detain gun manufacturers legally responsible for mass shootingsor state”laws for drama shops‘ which hold the suppliers of alcohol culpable for the actions of a drunk driver.
But one of the things that worried the people in Congress about the sale of cluster bombs to Saudi Arabia was that the Saudis consistent indiscriminate use of those weapons in Yemen could be viewed at home and abroad as complicity in those US violations.
I would say it became difficult for Washington to keep supplying the Saudis on moral grounds. Yet there was and currently is no clear legal obligation for the US to stop supplying cluster bombs to other countries.
It is highly unlikely that Ukraine will deliberately use cluster munitions supplied by the US to attack civilians and their environment. But nevertheless, providing Ukraine with cluster weapons could serve to destigmatize them and go against international efforts to end their use.
And that, in turn, could encourage — or excuse — its use by other states that may be less responsible.
Robert Goldman is a professor of law, American university
This article has been republished from The conversation under a Creative Commons license. Read the original article.
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