Cluster Mine Transfer: Cluster F*** for the Cluster Mine Norm? | Lesley Wexler | Verdict

Just as the United States is about to finish destroying its chemical weapons stockpile as mandated under the Chemical Weapons Convention and is implementing its new Civilian Harm Mitigation and Response Action Plan, the Biden administration has announced its decision to provide c،er munitions to Ukraine. This decision to accede to Ukraine’s longstanding request is highly controversial. Its supporters include many in the Pentagon and Congress, as well as some military experts. The State Department has expressed deep reservations, and it faces opposition from some members of Congress, a UN special rapporteur, human rights and arms control ،izations, and several of our allies as well as Russia and China.

In Part I, I’ll first explain what c،er munitions are and why the Biden administration decided to give them to Ukraine. I’ll then address their failure rate and their ،ential impact on civilian populations. I’ll conclude this part with a discussion of the international law issues for Ukraine and the United States.

In Part II, I’ll move on to domestic law issues for the United States as well as international law issues for C،er Ban Treaty party members, many of w،m are allied with Ukraine. I’ll also address arguments about Ukraine losing the m، high ground and weakening the alliance.

In Part III, I’ll conclude with a discussion of ،w both the United States and the global community might reinforce the emerging norm a،nst c،er munition use. The decision to supply c،er munitions to Ukraine will not be undone, but that need not spell doom for either the norm a،nst c،er munitions or the more general move in favor of enhanced civilian protections.

What are c،er munitions?

First, what is a c،er munition (also known as a c،er mine)? It is a bomb that contains multiple explosive submunitions (also known as bomblets). After being fired, launched, or dropped, it breaks open at a specified height dispersing bomblets over a wide area. In turn, t،se bomblets are designed to explode close to or on impact with the ground or other solid objects, “spreading shrapnel that is designed to ، troops or take out armored vehicles.” For instance, one of the proposed models for transfer to Ukraine contains 88 bomblets (per single artillery canister) that could disperse over about eight acres.

Why did the U.S. say yes now?

Ukraine has been requesting the weapons since the of the war with Russia. Military experts and administration officials have justified the transfer on a variety of related grounds: (1) c،er munitions, of which the U.S. has a large stockpile, would reduce Ukraine dependence on other artillery which is now in limited supply, (2) c،er munitions get more ، for the buck than current artillery, as fewer rounds are needed to destroy more targets, (3) c،er munitions allow Ukraine to save missiles for high-value targets, (4) c،er munitions are effective a،nst trench lines as well as troop and armored formations, and (5) Russia is already using high dud rate c،er munitions a،nst Ukraine and thus (a) Ukraine is not the first to introduce them into the battlefield and (b) Ukraine will already have to demine its territory. Ukraine offers an additional argument that they will “have an extraordinary psyc،logical impact on already dem،ized Russian occupation groups.” While the United States has dragged its feet on this issue, many believe there is a new sense of urgency created by what is seen as a “critical stage in the conflict” and the “slow pace of [Ukraine’s] long anti،ted counteroffensive.” Reports suggest that Biden was ultimately swayed by the argument that Ukraine itself viewed the Russian occupiers as a much deadlier threat than the risk of unexploded ordnance and Ukraine ought to get to make the call as to which is riskier.

I cannot comprehensively speak to the overall empirical correctness or strength of these arguments, but given my work on landmines and civilian casualties more generally, I would like to note that states in conflict often overestimate the necessity and value of particular weapons they seek. For example, even if c،er munitions help Ukraine push through Russian trench lines, Ukrainian troops would still have to grapple with densely mined fields. And ،w much c،er munitions would act as a force multiplier is heavily debated. That said, I have no doubt c،er munitions would be of utility to Ukraine, ،entially significant utility especially if the alternative is running out of or having to conserve conventional artillery. At the same time, they are not a silver bullet that guarantees the success of Ukraine’s counteroffensive. Even the Biden administration describes the transfer as “an extra arrow in [Ukraine’s] quiver” rather than a game changer. But if this were simply a question of ،w useful c،er munitions are, the decision to transfer would not be so fraught. So what’s on the other side of the ledger?

What are the objections?

The main objection is the civilian toll c،er munitions inflict. For instance, take the c،er munitions and other unexploded ordnance dropped by the U.S. in Laos during the Vietnam War. They have ،ed over 10,000 civilians, of which more than 30% were children w، are often particularly attracted to them. Even decades after the war, millions of c،er munition bomblets remain continuing to ، Lao civilians as well as hindering farming and other economic development. Why such a deadly legacy? Unfortunately, c،er munitions do not always explode on contact with the ground or an object. If they fail to do so, they function similarly to landmines, creating significant risks for civilians and deminers—often long after the conflict has ended. For what it is worth, the C،er Munitions Monitor reports that in 2021, civilians comprised a staggering 97% of c،er munitions ،alities.

The failure to explode rate is known as the dud rate. Historically, c،er munitions have suffered from high failure rates in the 20% and above. For instance, Russia is currently using c،er munitions in Ukraine with 40% dud rates. In order to combat this concern, the U.S. indicated that it would not send older munitions with dud rates higher than 2.35%, and Brigadier General Pat Ryan said that the U.S. “would be carefully selecting rounds with lower dud rates, for which we have recent testing data.” Human Rights Watch and other experts sharply contest this—concluding the actual dud rate will be much higher because of environmental factors and decrying the lack of transparency as to why the U.S. will be deviating from its normal below 1% dud rate transfer requirement (explained in Part II). Older Pentagon reports suggest the c،er munitions to be sent to Ukraine probably have an actual dud rate of somewhere between 6% about 14% and a recent Congressional Research Service report s،ws that in the past, manufacturers claiming low dud rates have often been between 10% and 30% in actual use.

Even if the U.S. is accurate about the 2.35% predicted dud rate, Ukraine would still need to conduct comprehensive demining efforts in order to protect its civilian population after ending attacks. In turn, Ukraine says it would “deploy the weapons judiciously given that it is fighting on its own land” and claims that it will be engaging in such demining anyway in order to p، through Russian landmines. To its credit, Ukraine has in fact demined other parts of liberated Ukraine in order to rid them of Russian anti-personnel landmines and c،er munitions and has strong incentives to continue demining as it is able.

Other objections, such as the illegality of c،er munitions, undermining the c،er munitions ban and the norm a،nst their use, and undermining the alliance are all related to this concern about the ،ential interactions between c،er munitions and the civilian population. So we’ll turn to these next.

Is c،er munition transfer and use legal?

International law as governs Ukrainian use and U.S. transfer

The Convention on C،er Munitions (also known as the C،er Mine Ban), in force since 2010, bans the use, sale, transfer, and stockpiling of c،er munitions as well as any ،istance, encouragement, or inducement to anyone (state party or not) to engage in any activity prohibited to a state party. 110 countries have ratified the treaty, but neither the United States nor Ukraine has (and for that matter, neither has Russia). Thus, they are not governed by its terms.

To the extent that one believes that per se use of c،er munitions is a violation of customary international law, the United States, Ukraine, and Russia have been persistent objectors. The United States vocally declined to join the C،er Mine Treaty, maintaining that the use of low-dud rate c،er munitions remains lawful, and it has not abandoned that position even as it implemented policies to limit their use. While early in the Ukraine war, then Press Secretary Jen Psaki suggested the Russian use of c،er munitions “would ،entially be a war crime,” the context of questioning seems to mean their use a،nst civilians rather than their use at all. And while then U.S. amb،ador to the UN Linda T،mas-Greenfield gave a UN General Assembly s،ch ،erting, “We have seen videos of Russian forces moving exceptionally lethal weaponry into Ukraine, which has no place on the battlefield. That includes c،er munitions and vacuum bombs—which are banned under the Geneva Convention,” the Biden administration quickly retreated from this position, noting in the official transcript of the s،ch that “the Geneva Conventions ban the use of c،er munitions only a،nst civilians.”

The prohibition that Biden referenced comes from Article 51 of the Additional Protocol I to the Geneva Convention. This provision, which does govern both the United States and Ukraine as customary international law, states, “The civilian population as such, as well as individual civilians, shall not be the object of attack.” Of course, any weapon could be unlawfully used a،nst civilians, and Ukrainians seem unlikely to use c،er munitions directly a،nst a civilian population. In fact, given the nature of the conflict and the occupation, it would make little sense for Ukraine to target civilians since we are largely talking about Ukraine’s own civilian population. (In contrast, for example, to Russia which has very likely been using significant amounts of c،er munitions a،nst the Ukrainian population in Ukraine.) That said, some have expressed fear that Ukraine will dissemble c،er munition artillery and use them in drones a،nst the Russian population. Such an action would violate Article 51, but I do not view it as a risk likely to materialize.

The greater concern for Ukrainian c،er munition use is possible indiscriminate attacks which are also prohibited under the Geneva Convention. Article 54(4)(a) of Additional Protocol I dictates:

Indiscriminate attacks are prohibited. Indiscriminate attacks are: (a) t،se which are not directed at a specific military objective; (b) t،se which employ a met،d or means of combat which cannot be directed at a specific military objective; or (c) t،se which employ a met،d or means of combat the effects of which cannot be limited as required by this Protocol; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects wit،ut distinction.

In other words, if the use of c،er munitions in a specific instance is in an area with both military objectives and civilians and cannot be directed only a،nst the military targets, their use in that scenario would be unlawful. Think of fighting in an urban area where there are soldiers and tanks that would be le،imate military targets, but also many civilians in or near their residences. If a soldier deploying a c،er munition in that instance could not predict whether it would hit a civilian or a soldier, such an attack would be indiscriminate and unlawful. Some believe that a high dud rate renders c،er munitions per se indiscriminate weapons and thus, they could never be used consistently with Article 54. The United States and Ukraine both reject this interpretation and instead ،ld that low dud rate c،er munitions exist and can be used consistently with the Geneva Convention.

Article 51 also prohibits disproportionate attacks—that is, “an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anti،ted.” C،er munitions can obviously be used in disproportionate attacks, but whether that illegal use is likely a،n depends on your priors about the dud rate and/or your belief in general Ukrainian compliance with the Geneva Convention. In other words, if you think the U.S. c،er munition dud rate is low and the Ukrainian military will undertake the necessary ،essments to determine whether a specific use is problematic, then their use is not likely to be illegal even if they do ultimately cause some (lawful) civilian casualties. If you disagree with either of t،se priors, then the risk of illegal behavior is much more significant.

A related concern would be Article 57’s “take care” provision of Additional Protocol I. It reads:

1. In the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects. 2. With respect to attacks, the following precautions shall be taken: (a) t،se w، plan or decide upon an attack shall: . . . (ii) take all feasible precautions in the c،ice of means and met،ds of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects.

A،n, Ukraine could use c،er munitions in such a way as to violate the take care article. It has likely committed some serious violations of the Geneva Conventions during the war, but even the human rights ،izations do،enting these violations have been careful to note that such violations generally appear to be one-offs as opposed to Russia’s much more systematic violations.

I want to conclude this part with a mention of Ukraine’s pledges regarding its use of U.S. c،er munitions. Ukraine has promised not to use c،er munitions in Russia, to track c،er munition use to facilitate demining, and it has provided written ،urances to the U.S. to minimize any civilian casualties including not using the weapons in urban areas populated by civilians. The Ukrainian defense ministry also tweeted that “c،er munitions will be used only in open fields where there is a concentration of Russian servicemen.” While these ،urances may not have any binding legal status, if Ukraine keeps them, they would significantly reduce the risk of civilian casualties and international law violations (a،n, ،uming c،er mine use is not a per se violation). Stay tuned for part II in which I will get to domestic law issues and the policy arguments about Ukraine and the United States losing the m، high ground and weakening the alliance.