Use of cluster munitions on the Ukrainian battlefield

 08. 10. 2023      Category: Defense & Security

Kyiv is nearing the receipt of another crucial piece of Western aid - American tactical ballistic missiles ATACMS which are capable of reaching Russian targets far beyond the front lines. This early delivery was confirmed by the President of the United States Joe Biden during talks with the Ukrainian President in Washington. It is expected to be a version of these missiles equipped with cluster munitions, known for their destructive impact on human life and banned in many countries. 

Negotiations between Ukraine and the USA regarding long-range missiles have been ongoing for several months. According to unnamed representatives of the US government and Congress the American President recently informed his Ukrainian counterpart Volodymyr Zelensky about the upcoming delivery of a smaller number of MGM-140 Army Tactical Missile System (ATACMS) missiles. These missiles much like the promised F-16 fighter jets could potentially represent another significant breakthrough in liberating the Russian-occupied regions of Ukraine.

ATACMS missiles possess the capability to strike targets up to a distance of 300 kilometers which significantly extending the reach of Ukraine's existing rockets. Ukraine is currently substituting these missiles using drones but MGM-140 ATACSM would enable Ukraine to potentially target entire bases and logistical centers of the Russian aggressor far beyond of Ukrainian battlefield. Furthermore the ability to launch these missiles from vehicles makes the entire system highly mobile providing an advantage for swift maneuvers on the battlefield.

Picture: M270 MLRS launching MGM-140 ATACSM | DEFENSE MAGAZINE

USA is supposed to provide Ukraine with not single-warhead missiles but cluster munitions which are capable of carrying a variety of smaller bombs that spread over a larger area making them suitable for widespread destruction. Ukrainian units have been using artillery cluster munitions M864 and M483A1 since July however these missiles have a shorter range. ATACSM will be gamechanger on battlefield.

"This is literally a gun fight ... They're running out of inventory. We are trying to ramp up our production of the kind of artillery shells that they're using most. But that production rate is still not where we wanted it to be.," explained White House spokesperson John Kirby back in July, defending the U.S. decision to supply cluster munitions to Ukraine. He also mentioned that the USA lacks alternative munitions. The United States is one of the few countries officially authorized to handle cluster munitions. This type of munition has devastating properties and is particularly dangerous for civilian populations as it can directly endanger their lives during widespread shrapnels while also contaminating large areas with unexploded ordnance. This very fact prompted international discussions on restricting and banning cluster munitions in 2007.

Neither Russia nor the USA ratified the convention

In 2008 in Dublin, Ireland - following the conference in Oslo - was adpoted Cluster Munition Convention often referre as the Cluster Munition Convention. A total of 123 countries from around the world committed to it and gradually 111 of them ratified the convention. This is noteworthy considering the convention was negotiated independently of the United Nations.

This particular convention prohibits the use, development, production, storage, possession, and transfer of cluster munitions that cause unacceptable harm to civilian populations. However it's worth noting as some of major countries known for manufacturing and using cluster munitions such as Russia, United States, China, India, Israel, and Pakistan did not become signatories to this agreement.

Dozens of cluster munitions await loading into Paladin howitzers | DEFENSEMAGAZINE.COM

Picture: Dozens of cluster munitions await loading into Paladin howitzers- Camp Hovey, South Korea | DEFENSE MAGAZINE

First use of cluster munitions on its own territory

The devastating impacts on the areas where cluster munitions have been used are the main argument of the Dublin Convention. It is surprising for many that Ukrainians are willing to use this type of weapon on their own territory - probably as the first country in history. Ukraine Army stated that they will use cluster bombs only against military targets and they will carefully document the areas of impact so that they can clear them after the war ends. 

The human rights organization Human Rights Watch (HRW) highlights repeated cases of the use of cluster munitions by the Russian army in Ukraine since the beginning of the invasion which results in significant loss of life especially among the civilian population. These included attacks in Vuhledar later in Kharkiv, Mykolaiv, Chernihiv, Kherson, Kramatorsk, and other cities. During past year was mistakenly killed few civilians in Izium using cluster bombs probably from Soviet origin which is not only one case in the Russian-controlled territory, according to HRW.

The International Civil Society Movement Cluster Munition Coalition published in September this year its latest report which states that Ukraine has even surpassed war-torn Syria in terms of casualties from cluster munitions. In 2022 sadly 300 people died in Ukraine and another 600 were injured in the occupied territory. Nnumbers of casualties was much lower in Syria - 15 dead and 75 injured.

The Russian army does not violate international law by using cluster munitions. They violate it by employing them in areas with a high concentration of civilian population

We have asked few questions to Colonel Otakar Foltýn - an expert in international law and hybrid conflict issues. He responds regarding so-called banned munitions including cluster munitions.

What does "banned munition" mean in practice? Can you provide specific examples?

This is a commonly used term for weapons and munitions that are either completely prohibited by international law or have restrictions on their use in some way. A textbook example is projectiles commonly referred to as "dum-dum" bullets which are bullets for handguns that are intentionally flattened or altered in shape to cause increased injury. Another example is, of course chemical and biological weapons which I believe do not require further explanation. Contrary to the general belief that there are no rules in war compliance with such prohibitions is broadly respected and generally (although not perfectly) adhered to. Additionally there are exceptions, such as the use of high-explosive projectiles or certain chemical substances (tear gas) for law enforcement purposes

Does it make sense to ban certain weapons at all? Isn't it naive?

On the contrary it is very rational and it is by no means naive idealism. The whole point is to prevent unnecessary suffering that is not essential to defeating the enemy. Let's take the example of the ban on chemical weapons. The suffering of a soldier with pneumothorax of the lungs caused by shrapnel from an artillery shell is not much different from the suffering of a soldier with lungs burned by mustard gas; both are suffocating. However, during World War I it became evident that chemical munitions were not as effective as initially thought. They did not resolve the trench warfare and were difficult to store making them expensive. In reality, they accounted for less than 2% of casualties. Therefore, technically, they were not excessively effective. On the other hand public opinion strongly perceived the age-old custom of banning poison. As a result, the use of chemical weapons was banned, which satisfied public opinion while not significantly affecting the ability to conduct combat operations. Standard artillery shells used in conflicts of higher intensity cause up to 75% of casualties. Understandably no one banned them. Nor could they precisely because of how effective this military tool is; states will never prohibit its use.

Who decides (individual states or groups of states) which munitions are "banned," and on what basis?

International law is primarily created by states and certain international organizations, such as the UN the International Committee of the Red Cross or UNESCO, exert some indirect influence. However the basis lies in the will of states either through the development of customary international law or the conclusion of international treaties. The prerequisite for a rule to become customary law is its general observance and long-term actual observance. In other words if there is a general consensus against the use of a particular means or method of warfare, and this rule is generally followed, it becomes universally binding, even for those who have not adhered to a specific treaty. However more frequently the source of law is the conclusion of a treaty a formal expression of states' will to be bound by a rule. In this context it is essential to understand that states usually accept only those commitments that they can fulfill and conversely do not agree to rules that would prevent them from conducting effective combat operations.

Which states adhere to the rules against using "banned munitions"?

When we talk about bans that have become customary international law most states adhere to them as I explained earlier. Prohibited are means that cause unnecessary suffering without bringing a meaningful military advantage. It is different when it comes to weapons or munitions that were recently banned by international treaties as it is not customary law and only applies to states that have acceded to the relevant convention. Typically this involves anti-personnel landmines and cluster munitions. However it is clear that anti-personnel landmines have effective alternatives due to innovations in controlled mines, self-destruction mechanisms, or new technologies. In contrast the ban on cluster munitions came at a time when a similarly effective replacement (such as swarms of drones) is not yet widely available and affordable to replace cluster munitions. This is why major states did not accede to the ban. If Russia and Ukraine are using cluster munitions today it is not a violation of international law even in the case of the Russian army. It is not in violation of international law because they are using cluster munitions but rather because they are using them in areas with a high concentration of civilian populations.

Can, for example, within a specific conflict, one of the warring parties "unban" certain munitions because they assess that they lack the capability of that munition?

The possibility of withdrawing from a treaty commitment is not excluded but in practice this rarely happens in the case of "banned" weapons. The laws of armed conflict work the same for both sides in a conflict. Both sides benefit from adhering to them. Conversely withdrawing from such commitments carries consequences that can affect both sides very quickly. Soldiers on both sides have an interest in not being killed when captured because they fear that the other side will reciprocate. The same applies to "banned" weapons. Legally there are possibilities for prosecution at the national and international levels such as the Nuremberg or Tokyo tribunals or the currently existing International Criminal Court. If you argue that it takes a long time, you are correct. That's why war crimes are non-prescriptive meaning there is no statute of limitations.

 Author: Oliver Jahn