Prior to President Biden’s announcement that the United States would arm Ukraine with cluster munitions, most Americans hadn’t heard of the controversial weapon system. Since the announcement, a wave of commentary and criticism has focused on the asserted evil of cluster munitions and their inherent risk to civilians.
Many Americans now know that, unlike the United States, almost all our major allies have joined the Convention on Cluster Munitions, which prohibits not only their use, but any action that facilitates that use (which ostensibly includes allowing the use of national territory or airspace for transferring the weapon). But what has been lost in this discourse is a careful assessment of why the United States chose not to join the Convention and how that decision plays into the reasoning for sending cluster munitions to Ukraine.
The cluster munitions debate is a metaphor for the broader debate over the legal regulation of warfare. International law provides for this regulation, a reflection of the choices made by nations to submit to rules that limit their options in war. This is nothing new and has been a feature of warfare for centuries. But this area of the law has always reflected a tension between two critical yet often competing goals: facilitating the efficient defeat of wartime enemies while mitigating the suffering of war.
Achieving a credible balance between these goals is the great challenge of the international law of armed conflict. Pursuant to the inherent balance between military necessity and humanity at the foundation of this law, some tactics and weapons are categorically prohibited. For example, attacking civilians, humanitarian actors, or civilian property is illegal and has no legitimate role in defeating an enemy. And certain weapons are also considered inherently inhumane and, therefore, illegal. Almost all of these are defined by multi-lateral treaties.
The Convention on Cluster Munitions is one of the most recent treaties to ban a weapon system. It reflects the view of many states that the weapon’s value cannot justify the inherent risk of civilian casualties resulting from its use. But not all states.
For the United States, however, categorically banning cluster munitions distorts the legitimate balance between military necessity and humanity. Why? Because of the immense operational value cluster munitions afford military commanders and the quality of the weapon’s self-neutralizing technology utilized in the modern U.S. version. Ultimately, the U.S. took the position that depriving our commanders of this capability to efficiently and effectively produce the type of devastating impact on an enemy could not be justified based on the risk created from a “dud rate” failure rate of 2-3 percent.
Such a failure rate indeed creates a risk of tragic consequences for civilians. But such is the reality of war. Anyone who believes international law does, or even can, eliminate all such risk is simply mistaken. Indeed, the law tolerates the knowing infliction of civilian harm as a consequence of attacking a lawful target so long as that harm is considered proportional to the military advantage. And any munition is at risk of a dud rate, while any weapon is subject to misuse or mistaken employment in a way that causes civilian harm and suffering.
Those who understand the nature of combat operations understand that the United States’ decision not to join this weapons ban was rational and reasoned, even if it is inconsistent with the position of many allies. And considering the challenges faced by Ukrainian commanders in their current fight, it is equally rational and reasoned why they want cluster munitions and why the US choose to arm them with this tremendously effective capability, which they will use on their own territory.
Like it or not, Ukrainian commanders will now be armed with this capability, just as U.S. commanders will in future conflicts. It is, therefore, essential that our emphasis shift to ensuring the quality and morality of those who will be entrusted with its employment. This should be the focus of our policy and the Ukrainian high command. Indeed, our greatest hope for balancing necessity with humanity is that those responsible for waging war retain a deep sense of morality and the accordant restraint it requires. Sadly, it is not the transfer of cluster munitions that proves this point, but the brutality of the Russian military those munitions are intended to check.
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Geoffrey Corn is the George R. Killam, Jr. Chair of Criminal Law and the Director of the Center for Military Law and Policy at Texas Tech University School of Law. Corn is a Lieutenant Colonel (retired) having served 22 years in the Army as both a tactical intelligence officer and a military attorney. His career culminated as the Army’s senior law of armed conflict expert advisor. He has authored or co-authored more than 60 scholarly articles and numerous texts, including “The Law in War: A Concise Overview.“
