The US announced July 7 that it will provide Ukraine with cluster munitions, despite a plea from Human Rights Watch (HRW) for both Russia and Ukraine to cease their use of the controversial weapons, which have already caused many civilian deaths and injuries over the course of the war. In a White House press briefing, National Security Advisor Jake Sullivan stressed that the US deferred the decision for as long as possible due to such considerations, but ultimately found that the harm of a continued Russian offensive outweighed the risks of providing the munitions.

The munitions are inlcuded in a new package of $800 million worth of weaponry approved by presidential order to support Ukraine's ongoing war effort against Russia. Cluster munitions are rockets, bombs, missiles or artillery projectiles that break apart and scatter smaller explosives over large areas. International human rights observers condemn the use of these munitions because, once fired, it is nearly impossible to control the scope of damage wrought by them. Russia and, to a far lesser extent, Ukraine have used cluster munitions since the start of the war in February 2022, despite international criticism from bodies including the UN Human Rights Council.

In its statement, HRW pleaded with Russia and Ukraine to cease the use of cluster munitions in the war. Acting arms director at HRW Mary Wareham said, "Cluster munitions used by Russia and Ukraine are killing civilians now and will continue to do so for many years. Both sides should immediately stop using them and not try to get more of these indiscriminate weapons."

But the US defended its decision to provide Ukraine with the munitions. Sullivan said:

We recognize that cluster munitions create a risk of civilian harm from unexploded ordinance…. 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. That is intolerable to us.

Sullivan further argued that there is a "big difference" between the cluster munitions provided by the US to Ukraine and those used by Russia. Sullivan claimed that the US-provided cluster munitions have a "dud rate"—meaning the munition fails to explode upon impact—of only 2.5 percent. In comparison, Russian cluster munitions have a rate of between 30 and 40 percent.

However, HRW said, "The cluster munitions that the United States is considering sending to Ukraine are more than 20 years old, scatter over a wide area, and have a notoriously high failure rate, meaning they could remain deadly for years."

The 2008 Convention on Cluster Munitions strictly prohibits the use, development, production, acquisition, stockpiling and transfer of cluster munitions. Notably, none of the three parties involved here—Ukraine, Russia or the US—are signatories to the convention. That said, the UN Office of the High Commissioner for Human Rights has previously stated that the use of cluster munitions may still violate international humanitarian principles governing the conduct of hostilities. In other words, the use of cluster munitions may still amount to war crimes.

Nonetheless, Sullivan claimed that US allies supported the move, which comes ahead of an upcoming NATO summit in Lithuania. However, Germany and France—both NATO members and signatories to the 2008 convention—indicated that they will not follow the US move.

From Jurist, July 8. Used with permission.