July 9, 2023

The decision by the US to provide Ukraine with cluster munitions has led to strong criticism from humanitarian groups; met with the disapproval of some members of the US Congress, and created unease in some NATO capitals because Article 1 of the Convention on Cluster Munitions (CCM), adopted in Dublin on May 30, 2008, and opened for signature in Oslo on December 3 the same year, says:

“Each State Party undertakes never under any circumstances to:

“(a) Use cluster munitions;

“(b) Develop, produce, otherwise acquire, stockpile, retain or transfer to

anyone, directly or indirectly, cluster munitions;

“(c) Assist, encourage or induce anyone to engage in any activity prohibited to a State Party under this Convention.

Because, as stated in the Convention’s preamble, cluster munition remnants kill or maim civilians, including women and children, obstruct economic and social development, including through the loss of livelihood, impede post-conflict rehabilitation and reconstruction, delay or prevent the return of refugees and internally displaced persons, can negatively impact on national and international peace-building and humanitarian assistance efforts, and have other severe consequences that can persist for many years after use.

In other words, the widening use of cluster munitions in Ukraine is not only likely to raise the number of civilian casualties, but when the war is over, the demining and clearing of the combat areas from unexploded cluster munitions could take a huge effort and many years.

Russia, Ukraine, and the US have not signed the Convention, and reportedly cluster bombs have reportedly been used by both sides in the war in Ukraine, more by the Russians. The majority of NATO members are parties to the Convention. The non-signatories other than the US are Estonia, Finland, Greece, Latvia, Poland, Romania, and Türkiye.

On July 7, 2023, White House National Security Advisor Jake Sullivan confirmed that the US would send cluster munitions to Ukraine. [i] He said:

“We have provided Ukraine with a historic amount of unitary artillery rounds, and we are ramping up domestic production of these rounds.  We’ve already seen substantial increases in production, but this process will continue to take time, and it will be critical to provide Ukraine with a bridge of supplies while our domestic production is ramped up.  We will not leave Ukraine defenseless at any point in this conflict, period. 

“Second, Russia has been using cluster munitions since the start of this war to attack Ukraine…”

While admitting that cluster munitions create a risk of civilian harm from unexploded ordnance, he stressed that the US cluster bombs have lower failure or “dud rates” than the Russian ones.

Later in the day, in an interview, President Joe Biden called it a “very difficult decision”.

Some critics of sending cluster munitions to Ukraine have referred to two earlier statements by US officials condemning the use by Russia of such munitions in Ukraine.

On February 28, 2022, White House Press Secretary Jen Psaki was asked, “There are reports of illegal cluster bombs and vacuum bombs being used by the Russians.  If that’s true, what is the next step of this administration?  And is there a red line for how much violence will be tolerated against civilians in this manner that’s illegal and potentially a war crime?” Her response was, “It is — it would be.  I don’t have any confirmation of that.  We have seen the reports.  If that were true, it would potentially be a war crime.” [ii]

A few days later, on March 2, 2022, Ambassador Linda Thomas-Greenfield, US Representative to the UN, addressing the General Assembly’s Emergency Special Session on Ukraine said, “And now, it appears Russia is preparing to increase the brutality of its campaign against Ukraine. We have seen videos of Russian forces moving exceptionally lethal weaponry into Ukraine, which has no place on the battlefield. That includes cluster munitions and vacuum bombs – which are banned under the Geneva Convention.” [iii]

US officials, from day one, have condemned Russia’s invasion of Ukraine in the strongest possible language. But with the exception of the above-mentioned statements not much has been said on Russia’s use of cluster munitions which could provide the West with further solid ground to target Russia. The underlying reason is that the US is not a party to the Convention on Cluster Munitions. And Washington must have thought that such criticism would lead Moscow to say that not being a party to the Convention Washington has no right to claim moral high ground on their use. And NATO allies were inclined to ignore the problem. All NATO members joining the Convention could have been a better option.

Now, however, NATO allies have started expressing unease over Washington’s decision to supply Ukraine with cluster munitions. UK Prime Minister Rishi Sunak has confined his remarks to saying that the UK is one of the parties to the Convention on Cluster Munitions. The Canadian government said it was against the use of cluster bombs and remained fully compliant with the Convention on Cluster Munitions.

But Spain’s Defense Minister Margarita Robles went further. She told reporters that her country had a “firm commitment” that certain weapons and bombs could not be sent to Ukraine. “No to cluster bombs and yes to the legitimate defense of Ukraine, which we understand should not be carried out with cluster bombs,” she said.

And Germany, which has signed the ban treaty, said it would not provide such bombs to Ukraine, but expressed understanding of the American position. “We’re certain that our US friends didn’t take the decision about supplying such ammunition lightly,” German government spokesman Steffen Hebestreit told reporters.

The NATO summit in Vilnius may witness more expressions of concern behind closed doors, and perhaps a few reserved public statements of disapproval.

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[i] https://www.whitehouse.gov/briefing-room/press-briefings/2023/07/07/press-briefing-by-press-secretary-karine-jean-pierre-and-national-security-advisor-jake-sullivan-5/

[ii] https://www.whitehouse.gov/briefing-room/press-briefings/2022/02/28/press-briefing-by-press-secretary-jen-psaki-february-28-2022/

[iii] https://www.theguardian.com/world/2023/jul/07/biden-ukraine-cluster-bombs-us-military?CMP=share_btn_link