Cluster Mine Transfer: Cluster F**k for the Cluster Mine Norm? Part II

Posted in: International Law

Hello again! In Part I of this series, I explained what cluster munitions are and why the Biden administration decided to give them to Ukraine. I addressed their failure rate—noting the Biden administration claims the munitions to be transferred will have a no greater than 2.35% dud rate and the reasonable concerns of opponents that they may have a 10-20% dud rate in actual field use. I described the absolute prohibitions of use and transfer under the Cluster Ban Treaty as well as the governing Geneva Convention limitations on indiscriminate and disproportionate attacks. I concluded that one’s assessment of whether cluster mine use is per se unlawful for non-Cluster Ban Treaty members depends on one’s beliefs about whether the dud rate is ever permissibly low enough and that one’s assessment of whether Ukraine’s cluster mine use will be lawful turns on whether you believe their assurances about use and commitment to demining as well as dud rates.

In this part, I’m moving on to domestic law issues for the United States as well as international law issues for Cluster Ban Treaty party members, many of whom are allied with Ukraine. I’ll also briefly address arguments about Ukraine losing the moral high ground and weakening the alliance.

Geneva Convention Protections Aren’t Waivable

But before doing so, I want to briefly discuss how Biden’s reasoning about Ukrainian decision making interacts with international law. Numerous news articles have suggested that Biden was ultimately persuaded to transfer cluster munitions because Ukrainians themselves ought to get to decide whether the risks of cluster munitions outweigh the risks posed by a future life under Russian occupation or the current risks of the war with Russia. Civilian protections enshrined in the Geneva Convention are not waivable by states nor subject to general cost-benefit balancing (though specific provisions like that governing proportionality allow very circumscribed balancing). In other words, Ukraine cannot lawfully choose to violate prohibitions on indiscriminate attacks because they believe doing so is necessary to win the war or because it is less costly than compliance. One ought to understand Biden’s reasoning as implicitly and inherently cabined by the Geneva Conventions, rather than as an exception to it. In other words, he concluded that Ukraine ought to get to decide whether the risks of lawful cluster munition use are worth the possible costs not whether the risks of indiscriminate or disproportionate cluster munition use are worth it.

President Biden’s National Security Advisor Jake Sullivan has made similar comments that ought to be contextualized within the overall laws of war framework. When defending the decision to send cluster munitions, he said “We recognize that cluster munitions create a risk of civilian harm from unexploded ordnance. . . But there is also a massive risk of civilian harm if Russian troops and tanks roll over Ukrainian positions and take more Ukrainian territory and subjugate more Ukrainian civilians because Ukraine does not have enough artillery.” This statement can only be a policy rationale—not a legal one. If cluster munitions are inherently indiscriminate or are used in an indiscriminate or disproportionate manner, the risk of Russian-induced civilian casualties cannot change the particular cluster mine use from unlawful to lawful. Rather if they are to be used lawfully, then the risk of Russian-induced civilian casualties becomes relevant as a policy matter. The same implicit background laws of war constraints goes for Undersecretary of Defense for Policy Colin Kahl’s comment, “The worst thing for civilians in Ukraine is for Russia to win the war.” That is likely true, but as Kahl acknowledges elsewhere, it cannot immunize otherwise unlawful acts. While Chinese news outlets are making much of Kahl’s comments, I do think the Biden administration understands and hopes Ukraine’s use of cluster munitions will be compliant with the Geneva conventions.

U.S. Domestic Law and Policy

That brings us to domestic law and policy. While the United States strongly considered joining the Landmine Ban Treaty and aggressively tried to influence the treaty drafting in the late 1990s, it did not participate in the Cluster Munition Convention negotiations and no U.S. President since has endorsed treaty ratification. Even so, since the existence of the Cluster Mine Ban, the United States often moved in the direction of limiting cluster mines even as it maintained its military utility. As I have written in a prior Justia post, “by 2005, the United States Department of Defense prohibited purchase of cluster munitions with a failure rate greater than 1 percent and more importantly, in 2008, adopted a new policy, pledging not to ‘use, sell, or transfer cluster munitions with a failure rate greater than one percent’” and ordered the U.S. military to phase out munitions with a greater than one percent dud rate by 2019. In addition, the U.S. has only produced unitary warheads since then and slowly converted older rockets to be unable to use cluster munition warheads making the costs of returning to cluster munition use significantly higher. The Obama administration worked hard to get non-Cluster Ban Treaty parties to agree to significant limitations on cluster mine use under the Convention on Certain Conventional Weapons. When the attempted negotiations failed in 2011, the Obama administration affirmed its commitment to prohibit the use of cluster munitions with more than a 1% dud rate and referenced its extensive ongoing efforts in global unexploded ordnance removal.

However, not all U.S. activity has been in the same direction as the Cluster Mine Ban. President Trump walked back the U.S. policy by infinitely delaying the ban on cluster munition use with a failure rate over 1% and instead just requiring commander approval for use of higher dud rate munitions. Even under the Trump administration’s laxer policy, in which cluster munitions were deemed integral to future wars, the U.S. still did not choose to again use cluster munitions. In fact, the U.S. has only once confirmed its own use of cluster munitions after the adoption of the 2008 policy which was a 2009 single attack in Yemen. The U.S. has not used them in the intervening 13 years despite engaging in multiple military actions.

As for U.S. sale or transfer to other countries, such activity has been limited since the Cluster Munitions Convention went into force. Most notably, the U.S. did sell cluster munitions to Saudi Arabia but suspended sales in 2016 given their impact on Yemeni civilians. (For what it’s worth, this is not the first U.S. suspension of cluster munition transfers. The U.S. also suspended cluster munitions sales to Israel in the 1980s after Israel’s problematic use of the weapons during its invasion of Lebanon.) The 2019 Congress enacted a series of export restrictions on cluster munitions with a dud rate in excess of one percent. The President can waive this provision in exceptional circumstances and has done so with Ukraine. In sum, while the U.S. has mostly moved in the direction of greater civilian protection by limiting cluster munition use and transfer, the Ukraine transfer does not violate existing domestic law though it does take a step back from existing practices regarding transfers.

State Party to the Cluster Munition Convention Compliance

But what about states outside of the U.S. and Ukraine—could the U.S. transfer or Ukrainian use implicate the Cluster Munition Convention compliance of state parties like the U.K. or Germany? While Article 21(3) of the Cluster Munition Convention explicitly allows “States Parties, their military personnel or nationals, [to] engage in military cooperation and operations with [non-Party] States . . .that might engage in activities prohibited to a State Party,” Article 21(4) still precludes state parties from stockpiling, transferring, using, or “request[ing] the use of cluster munitions in cases where the choice of munitions used is within its exclusive control” and Article 1 obligates state parties to “never under any circumstances” assist with prohibited acts. Given their treaty obligations, some state parties have already gotten the U.S. to remove stockpiled cluster munitions from their territories. Looking forward, state parties might deny U.S. overflight access to transport cluster munitions to Ukraine. While there are not many examples of similar denials, Ireland did deny overflight rights for planes believed to be carrying white phosphorus and landmines in violation of Ireland’s international law obligations and the U.K. government limited U.S. reconnaissance flights out of British bases in Cyprus due to concerns of extraordinary rendition. Ireland has recently made clear it would issue similar denials for cluster munitions. While the U.S. could flout such denials, doing so risks further and more expansive denials and relationship deterioration. Instead, it will likely use a path that does not go through or above a treaty country and thus avoid potential compliance issues entirely.

Will Cluster Munition Use Undermine Ukraine’s Moral High Ground and/or Alliance Cohesion?

As I have written in a former post, “Zelensky has cast this conflict [with Russia] as one in which ‘the fate of the world order, which is based on rules, on humanity, on predictability, is being decided.’” Does granting this request for cluster munitions undermine the seeming commitment of Ukraine to rules and to humanity? Well, Ukraine has already used cluster munitions and antipersonnel landmines in the conflict—decisions for which they have also received some blowback. And some of those cluster munitions did kill civilians, but whether they did so unlawfully is not perfectly clear (unless you hold the position that any use of cluster munitions is inherently unlawful). That said, Human Rights Watch has investigated one such alleged use in Izium, Ukraine, and concluded, “the use of cluster munitions in areas with civilians makes an attack indiscriminate in violation of international humanitarian law, and possibly a war crime.”

Of course, the scale here is likely to be much greater on both dimensions. While Ukraine did get some cluster munitions from Turkey in late 2022 and the precise number of the U.S. transfer is unknown, the United States transfer will very likely be a massive increase in their stocks. For what it’s worth, Ukraine said it anticipated using 7,000 to 9,000 of the non-cluster munition 155mm rounds daily during the counteroffensive so even if they used less of the cluster munitions, we are still talking about a very significant number of duds compared to non-cluster munitions. (Think of it this way, a unitary warhead has a single explosive package that either explodes or not, whereas each cluster munition warhead has 70-90 submunitions each of which could explode or not.) And the U.S. decision to transfer the weapons has certainly received significantly more attention than Turkey’s transfer to Ukraine, the unnamed European country that petitioned Germany to transfer cluster munitions to Ukraine, and Ukraine’s own past use.

On the other hand, as I mentioned in the prior post, Ukraine has made many assurances about the use of cluster munitions provided by the U.S. that it probably didn’t make to Turkey. So to the extent that the way the cluster munitions are used (as opposed to their mere use at all), the jury is still out on whether Ukraine will choose to forfeit the moral high ground in how they use cluster munitions.

As for the alliance, this is a bit beyond my expertise but I do think the strain is likely to be minor if (and only if) Ukraine abides by its assurances about lawful cluster munition use. Though some allies have spoken in opposition to the transfer decision and affirmed their ongoing support for the Cluster Mine ban, it has so far been a muted and understated public criticism. Take, for example, when German President Steinmeier said, “Germany’s position against the use of cluster munitions is as justified as ever. But we cannot in the current situation block the United States,” and German spokesman said, “We’re certain that our U.S. friends didn’t take the decision about supplying such ammunition lightly. We need to remember once again that Russia has already used cluster ammunition at a large scale in its illegal war of aggression against Ukraine.” I don’t know what’s happening behind the scenes, but that kind of comment certainly isn’t evidence of a significant public strain. Similarly, NATO’s secretary has emphasized the difference between Russia’s offensive use of cluster munitions to invade Ukraine and Ukraine’s use to defend against its aggressor rather than castigate the U.S. for giving or Ukraine for taking. Moreover, this isn’t the first time the alliance has also faced disagreements over the provisions to Ukraine. Both debates over M1 Abrams tanks and F-16 aircraft in which many European allies wanted to give F-16s to Ukraine but the U.S. strenuously opposed (it eventually caved) have caused disagreements but no lasting rifts. On the other hand, those other disputes were centered around policy questions as to whether such decisions would escalate the conflict with Russia or how much they would help Ukraine as opposed to a moral issue about civilian casualties. That all said, NATO’s recent post-cluster-mine transfer compromise allowing for Ukraine’s eventual membership (though without providing a timetable) suggests the munitions transfer has not cast Ukraine as an international law or moral pariah. Even so, it may erode the support of the publics in Cluster Ban Treaty countries which might eventually weaken alliance support.

If Ukraine uses the weapons unlawfully i.e. indiscriminately or disproportionately among its own population or to target Russian civilians, that would and should undermine its moral high ground. How the alliance would respond to such action is a harder question. It could lead to significantly decreased alliance support, a move for legal accountability, and/or discontinuing the supply of the munition as the U.S. did with Saudi Arabia back in 2016.

Stay tuned for Part III, in which I’ll conclude with a discussion of how both the United States and the global community might reinforce the emerging norm against cluster munition use. The decision to supply cluster munitions to Ukraine has been made, but that need not destroy either the norm against cluster munitions or the more general move in favor of enhanced civilian protections.

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