December 11, 2023

Support Ukraine, but not with cluster bombs

Support Ukraine, but not with cluster bombs

As with cluster munitions, which the US is sending to Ukraine, the international community has prohibited the use of chemical weapons. There was an outcry over their use in Syria – why is this situation different?

Opinion: Prime Minister Chris Hipkins says he will be reiterating New Zealand’s support of Ukraine at the Nato summit in Lithuania this week while restating New Zealand’s opposition to the use of cluster munitions in the war.

Ukraine is likely to be the main topic of conversation at the summit in Vilnius, which is roughly as far from the border with Ukraine as Wellington is from Auckland. I fully expect the egregious decision announced last week by the United States to send cluster bombs to Ukraine (in response to Ukraine’s repeated requests for them) to be high on the agenda. There are a number of reasons why the transfer should not proceed.


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First, international law prohibits the use of cluster munitions. Much has been written about the Cluster Munitions Convention in recent days and that though 111 states are party to that treaty (including Nato states such as UK, Germany, France and Spain), the US and Ukraine remain outside the treaty regime. Though that is true, cluster munitions are also emphatically prohibited by international humanitarian law (or the laws of war) on account of their indiscriminate effects, and this is a body of law to which all states are bound, including the US and Ukraine.

Second, Nato states party to the Cluster Munitions Convention have not only undertaken not to use cluster munitions themselves but also undertook in the treaty to not “assist, encourage or induce” any other state to carry out any activity prohibited under the treaty. In other words, the UK, Germany and France cannot “assist” the US delivering the weapons to Ukraine – so, where will the US flights carrying the weapons land for example? 

There is a carve-out provision later in the treaty (article 21, the so-called interoperability provision) allowing for states parties to cooperate with non-states parties even when those non-states parties “might” (in the exact words of the treaty) use cluster munitions. But there is no “might” in this situation – it is clear that if the US supplies these munitions to Ukraine, they will be used. As such, Nato cannot hide behind article 21.

Third, all states parties to the Cluster Munitions Convention have, in addition to good faith obligations in general international law, obligations to protect and ensure the health of this treaty. They have an obligation to make their “best efforts to discourage non-states parties from using cluster munitions”.

A cluster munition is a “parent munition” that contains within it multiple (sometimes hundreds) of sub-munitions; the term includes the parent munition and the sub-munitions. Unlike landmines they are not designed to lie in wait until trodden on, but to detonate when they first hit the ground. Only they don’t always.

Cluster munitions are indiscriminate because they have such a wide footprint, but also because, though the manufacturers have insisted otherwise, they have a high “dud” rate. That is, large numbers don’t detonate and, like landmines, remain in the ground and explode well after the conflict ends.

How often they fail was disputed at length during the convention negotiations. Manufacturers claimed that failure rate was five percent at most but then developed the technology to be able to claim one percent. In an actual world of war, failure rate is never one percent. The proven failure rate in the 2006 Lebanon War was 10 percent with some estimating it at 25 percent. (Israel had bought the weapons from the US at a cheap price because they were old.)

The New York Times reported last week that the Pentagon said the weapons they would send to Ukraine had a failure rate of 2.35 percent or less, far better than the usual rate common for cluster weapons, but the Pentagon’s own statements indicate the cluster munitions in question contain older grenades known to have a failure rate of 14 percent or more.

It is clear Nato states have direct legal obligations to uphold and are not helpless bystanders – they must not abdicate their legal responsibilities at the summit.

Quite apart from the legal arguments resting on the treaty, the transfer that will inevitably lead to further use of cluster munitions in this war will have tragic consequences and are breaches of international humanitarian law. It will be civilians in Ukraine who will bear the brunt of the harm being done by these munitions. Volodymyr Zelensky says that they will only be used in “appropriate areas” – but what does that mean? Ukraine’s obligations under international humanitarian law are to ensure civilians do not become victims of indiscriminate attacks – that means all civilians, not just civilians sympathetic to Zelensky’s government.

There is a grotesque irony in providing Ukraine with cluster munitions: the international community has (rightly) condemned the Russian Federation for its invasion. It has repeatedly drawn attention to the plight of “innocent Ukrainian civilians”. Some have even argued that assistance to Ukraine ought to be more robust and direct to protect those civilians from this humanitarian catastrophe. Is the international community really prepared to remain silent on the side-lines when we know as a certainty that if these weapons are transferred to Ukraine, it will unleash devastation on civilians?

If “humanitarianism” means anything the international community should not be turning a blind eye to Ukraine’s use of clusters or the US proposal to transfer those weapons. When Syria used chemical weapons, there was an outcry (even though Syria was not a party to the Chemical Weapons Convention at that time). As with cluster munitions, the international community had prohibited the use of chemical weapons and they were considered inhumane. Why is this situation different?

The Prime Minister has rightly expressed concern about any further use of cluster munitions by Ukraine (there are credible reports from the UN that Ukraine has already used cluster munitions in this conflict). If he is serious about Aotearoa’s position as a champion of a “rules based international order”, this would be the time to step up.

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