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The Dartmouth
March 1, 2024 | Latest Issue
The Dartmouth

Dunleavy: War Crimes for Thee, But Not for Me

The recent decision by the U.S. to send cluster bombs to Ukraine poses a clear and unacceptable danger to innocent civilians that could have long lasting impacts in the region.

As the Russian invasion of Ukraine rages on, President Joe Biden granted President Volodymyr Zelensky’s request for Ukrainian usage of American cluster bombs against the Russian military. Biden’s decision is controversial, as critics point to a consensus that their use constitutes a war crime and that transferring U.S. weapons to other states carries an inherent risk. Meanwhile, supporters claim the bombs are necessary for Ukrainian victory against Russia’s violent invasion that currently employs cluster bombs against Ukrainians. However, there are more just and effective methods for the U.S. to support Ukraine’s freedom. Ultimately, war must not justify war crimes. 

Cluster bombs are uniquely dangerous, earning their use the designation of a war crime. Cluster bombs are composed of tens to hundreds of smaller explosives that inflict greater damage when detonated. Their unpredictability also endangers innocent civilians. AP News reported that up to 40% of cluster bombs have failed to explode in recent conflicts, leaving unexploded bomblets behind to threaten civilians long after. The Human Rights Watch Organization declared that cluster bombs should “never be used in populated areas.” A 2006 study by Humanity & Inclusion found that 98% of cluster bomb casualties were civilians, credited to the unpredictable range of cluster bomb explosions and delayed explosions years later.

The international recognition that cluster bombs are unjustifiably dangerous to civilians led to the Cluster Bombs Convention, an international treaty among 123 countries that prohibits the use, stockpiling, transfer and production of cluster bombs. The treaty’s signatories include many of America’s essential allies, including Canada, the European Union, Australia and Japan. The U.S. justified its abstention from the treaty by claiming that the world’s military powers were insufficiently consulted in the formation of the treaty. In the days following the Biden administration’s commitment to giving cluster bombs to Ukraine, several U.S. allies have already come forward opposing that decision. The U.K., Canada, New Zealand and Spain announced that although they support the legitimate defense of Ukraine, cluster bombs pose an unacceptable, long-lasting danger to innocent people.

There is no guarantee that the American cluster bombs will be used solely for their designation according to American-Ukrainian agreements. While the  Ukrainian government promised U.S. officials that cluster bombs would only be used  far from civilian areas,  historical examples demonstrate how fragile and unstable such promises are. In the 1970s, Jimmy Carter’s administration gave cluster bombs to the Israeli government for the explicit purpose of self-defense. Regardless, the Israeli government used cluster bombs in their offensive in Southern Lebanon. Additionally, the Israeli government transferred American-made cluster bombs to Saad Haddad’s right-wing South Lebanon Army, violating Israel’s agreement with the U.S. More recently, in 2006, the Israeli military’s possession of American cluster bombs led to the scattering of four million explosives throughout Southern Lebanon — near homes, farms and hospitals. According to the Human Rights Watch Organization’s investigation of the conflict, the Israeli military used cluster bombs indiscriminately and disproportionately, sometimes without even a designated military target. The unexploded bomblets continue to harm and threaten innocent civilians. 

Of course, as the Israeli Foreign Spokesman Mark Regev said, “NATO countries stock these weapons and have used them in recent conflicts. The world has no reason to point a finger at Israel.” Many hyper-militarized countries are guilty of committing war crimes, and the use of cluster bombs is not excluded from that list. All the same, the Israel example highlights that the U.S. cannot control whether cluster bombs are used against civilians once the U.S. gives cluster bombs to an ally. The road to hell is paved with good intentions. 

All that said, it is critical to note that Russia has already shed blood through its use of cluster bombs. Human rights groups confirmed that the Russian military launched a cluster bomb near a Ukrainian preschool, killing three civilians. Yet, even avid supporters of Ukraine’s defense against invasion ought to question whether offensive war crimes justify war crimes in the name of defense. 

That brings us to a core justification behind the transfer of American cluster bombs to Ukraine: Without them, Ukraine risks losing the war, and Russian rule would be more devastating than any damage caused by cluster bombs. The Ukrainian defense minister Oleksii Rezinkov argued that cluster bombs would be “a turning point” in attacking entrenched Russian troops. However, cluster bombs are ineffective in supporting Ukraine’s self-defense against the invading Russian military. A 2006 study found only 2% of cluster bomb casualties are the intended, non-civilian targets. 

Claiming that Ukraine’s defense is impossible without the addition of cluster bombs ignores the staggeringly colossal continued military support by the U.S., which has already provided more than $41.3 billion in security assistance to Ukraine. Ukraine has received commitments of military aid worth $104.19 billion from its top 10 donors for arms and equipment alone, a long list that includes tanks, long-range artillery, armored combat vehicles, drones and the Patriot missile system. How could cluster bombs, with only a 2% casualty rate for intended, non-civilian targets, possibly be the tipping point in the face of the continuing extensive global support? On what calculations and strategies is this undebatable need for dangerous, unpredictable cluster bombs based? 

The U.S. Deputy Defense Secretary Colin Kahl claims the soon-to-be Ukrainian cluster bombs have a failure rate of 2.35%, making them much safer than historical uses of cluster bombs. However, the military-conducted study upon which the 2.35% number is based is strictly confidential, prohibiting scientists, civilians and elected officials from confirming the data and methods behind the Secretary’s claim. Even if the 2.35% failure is true, the U.S.’s own laws created by democratically elected officials decided that the U.S. cannot sell or transfer cluster bombs with a failure rate above 1%. 

Ultimately, the world must continue to support Ukraine in its legitimate defense against the extensive threat of the Russian military’s violent invasion. At the same time, like the rest of the world, Americans should question the Biden administration’s decision. Does war justify war crimes? Must war crimes beget more? Must legitimate defense incorporate weapons more likely to harm civilians in return for the  small chance that cluster bombs will push back the invaders? War will always be unjust and violent, even when there is no other option but war. Should Ukrainian leadership find that war does indeed justify war crimes, Ukrainians and their children will suffer violence and instability long after the war is won.

Opinion articles represent the views of their author(s), which are not necessarily those of The Dartmouth.