Source Responsible Statecraft

WASHINGTON, U.S.:The Biden administration’s decision last Friday to approve the transfer of cluster munitions to Ukraine met with significant opposition from Democratic lawmakers, arms control experts, human rights groups, and several European allies.

While the president defended what he called a “difficult decision” to provide Ukraine with additional ammunition for their ongoing counteroffensive, the administration’s arguments in support of sending these indiscriminate weapons fell flat with members of Biden’s own party and key supporters of the U.S.-led coalition supporting Ukraine’s war effort.

The president’s move puts him at odds with the Congressional restriction on the export of cluster munitions. According to the law, the U.S. is prohibited from providing these weapons to other governments if they have a dud rate higher than 1 percent. The president has the option to waive that restriction, but as The New York Times reported over the weekend, the cluster munitions that are to be sent to Ukraine contain explosives that have been known to have a failure rate of 14 percent and higher.

Depending on the terrain and conditions in which these weapons are used, the dud rate can end up being much higher than 1 or 2 percent. According to the report, “the shells being sent to Kyiv can fly farther than earlier versions, but they contain the same grenades, which had dud rates the Pentagon has characterized as unacceptably high.”

Many Democrats in Congress have already spoken out against the president’s decision. An amendment to the National Defense Authorization Act (NDAA) stopping the transfer has already been introduced by Reps. Sara Jacobs (D-Calif.) and Ilhan Omar (D-Minn.).

Meanwhile, on Friday, Rep. Chrissy Houlahan (D-Penn.), co-chair of the Unexploded Ordnance and Demining Caucus, said, “victory cannot come at the expense of our American values and thus democracy itself.” Rep. Barbara Lee (D-Calif.) was emphatic: “Cluster bombs should never be used. That’s crossing a line.”

Nineteen House progressives, including Lee, issued a joint statement attacking the decision: “The White House’s announcement runs counter to Congress’s restrictions on the transfer of these weapons and severely undermines our moral leadership.” Rep. Betty McCollum (D-Minn.), the ranking member of the defense appropriations subcommittee, said. “The decision by the Biden administration to transfer cluster munitions to Ukraine is unnecessary and a terrible mistake.”

The Biden administration has enjoyed broad support for its Ukraine policy among Democrats in Congress, but this decision has created the most significant and potentially damaging rift to date.

The president’s decision to transfer cluster munitions has also exposed a rift with some major European allies on the eve of NATO’s Vilnius summit. The German, Spanish, and British governments were quick to state their opposition to the move, and British Prime Minister Rishi Sunak emphasized that the U.K. would not follow the U.S. lead in this instance. The prime minister did not specifically attack Biden’s decision, but publicly taking an opposing position so quickly was an implicit rebuke of the U.S.

The debate over transferring cluster munitions is unlike earlier fights over other types of military assistance. There have been legitimate concerns about escalation risks associated with providing Ukraine with increasingly sophisticated weapons and platforms, but the inherently indiscriminate nature of cluster munitions puts them in a different category.

They are also not as “useful” in military terms as administration officials claim, and the dangers of using them will persist long after the war ends. One of the reasons why 123 countries belong to the Convention on Cluster Munitions that ban the use, sale, production, transfer, and stockpiling of these weapons is that all these governments, including more than two-thirds of our NATO allies, recognize that cluster munitions pose unacceptably high risks to civilians for years and even decades after fighting halts.

The unexploded bomblets that they leave behind are practically guaranteed to claim innocent limbs and lives, and in this case that means it will lead to maiming and killing more Ukrainians now and in the future.

Ahead of Biden’s decision, Human Rights Watch reported on the casualties caused by cluster munitions used in the war so far and urged the administration not to transfer them to Ukraine. As the report put it, “Transferring these weapons would inevitably cause long-term suffering for civilians and undermine the international opprobrium of their use.”

In response to the decision, Paul Hannon, vice chair of the International Campaign to Ban Landmines and the Cluster Munition Coalition, warned, “The Biden administration’s decision to transfer cluster munitions will contribute to the terrible casualties being suffered by Ukrainian civilians both immediately and for years to come.”

Marc Garlasco, military adviser for the Dutch NGO PAX Protection of Civilians, has warned that cluster munition dud rates are typically much higher in the field than they are in tests. According to Garlasco, the dud rates are “20-25% on average.” If dud rates are that much higher in use on the battlefield, there is no way that they can be used “carefully.”  

The use of these weapons is also dangerous for Ukrainian forces, who will be trying to advance through the same territory that will be littered with the unexploded ordnance that is left behind.

As the executive director of the Arms Control Association, Daryl Kimball, explained in an article for Just Security last week, providing these weapons to the Ukrainian government in the name of aiding their campaign will be counterproductive: “Cluster munitions cannot differentiate between a Russian solider and a Ukrainian solider. They would put advancing forces (and civilians) at risk of encountering unexploded ordnance from earlier bombardments. U.S. forces experienced serious fratricide dangers when it employed cluster munitions in Iraq in the 1990s.”

There is a good reason why the U.S. military stopped using these weapons in its own wars decades ago, and it would be a serious mistake to forget the lessons that have already been learned.

The Ukrainian government has given the U.S. assurances about how the cluster munitions will be used. Among other things, they pledge not to use them in populated urban areas. These promises are important and welcome, but they cannot eliminate the serious risk that these weapons pose to both Ukrainian civilians and soldiers. The use of more cluster munitions in the war will only exacerbate the problems of postwar cleanup of unexploded ordnance, including making the task of clearing away unexploded munitions that much more hazardous for the teams doing the work.

The danger that comes from providing Ukraine with these weapons is not that it might provoke Russian escalation or potentially widen the war, but that it will come at a cost in civilian lives whose total number won’t be known for decades. It is an unacceptable decision to trade the lives of future innocents for a limited military advantage now.

The administration’s concern that Ukrainian forces are running short on ammunition is legitimate, but this is a wrongheaded, short-sighted solution that comes at too high of a price. There have to be other alternatives to providing Ukraine with the means to defend itself that does not involve crossing this line.

Instead of shipping these indiscriminate weapons to Ukraine, the U.S. should join the convention that bans them and destroy its existing stockpiles.