Shortly after the Russian invasion of Ukraine, when reports circulated regarding the Russian use of cluster bombs, a reporter asked then–White House Press Secretary Jen Psaki about the Biden administration’s response to an action that was “potentially a war crime.”
“We have seen the reports,” replied Psaki on February 28, 2022. “If that were true, it would potentially be a war crime.”
The press secretary’s words have come back to haunt the Biden administration, which is now in the process of transferring stocks of this internationally banned weaponry to the Ukrainian government.
The United Nations Convention of Cluster Munitions, which was adopted in 2008 and went into force in 2010, “prohibits all use, production, transfer and stockpiling of cluster munitions.” Nearly 125 nations have ratified and signed onto the convention. Russia and the United States are not among them, but that does not change the reality that cluster bombs have long been associated with war crimes.
“Cluster munitions pose an immediate threat to civilians during conflict by randomly scattering submunitions or bomblets over a wide area. They continue to pose a threat post-conflict by leaving remnants, including submunitions that fail to explode upon impact becoming de facto landmines,” explains Human Rights Watch. Last August, the organization highlighted concerns about Russia’s use of “explosive weapons with wide area effects and widely banned cluster munitions in apparent violation of international humanitarian law, or the laws of war.”
Yet, last week, President Joe Biden approved the shipment of cluster bombs to Ukraine. Biden told CNN it was a “difficult decision” to provide Ukraine with the munitions, but said he had concluded, “They either have the weapons to stop the Russians…or they don’t. And I think they needed them.”
Campaigners for a ban on the munitions weren’t about to accept the president’s decision to facilitate the transfer of weaponry that once provoked a “potentially a war crime” reference from his former press secretary.
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“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,” said Paul Hannon, vice chair of the International Campaign to Ban Landmines and Cluster Munition Coalition (CMC) Governance Board. The CMC has called for “an immediate halt to transfers of the internationally banned weapon,” in a statement that urges both Russia and the United States to step back from the brink and take action to “guarantee protection of civilians and respect for international humanitarian law.”
Unfortunately, concerns about getting on the wrong side of international humanitarian law don’t appear to be a high priority for the administration at this point—despite the fact that, as Just Foreign Policy has noted, “So if [the] US provides at least 100,000 cluster bombs[,] [a]nd each one has at least 4 duds[,] Ukraine will be littered with at least 400,000 unexploded bomblets”—which are all but certain to lead to civilian casualties. While administration defenders may suggest that transferring US cluster bombs benefits Ukraine, the Friends Committee on National Legislation, the Quaker peace lobby, points out, “Endangering kids for generations to come is not how to end a war.”
Additionally, the US transfer raised the prospects of a military escalation that has led the committee’s general secretary Bridget Moix to ask, “If we are now OK with sending banned munitions into an active war zone, is anything off the table?”
That’s not OK.
So it falls to members of Congress to act to constrain an administration that is charting an indefensible course.
To their credit, key members of Congress have stepped up. US Representative Barbara Lee, the California Democrat who has long been recognized as the conscience of the Congress on issues of war and peace, argues, “The Ukrainian people are engaged in a just struggle for their rights, freedom and humanity. The US and Ukraine don’t need to stoop to Putin’s level.”
Joining her in this position are 18 House members, who signed a July 7 statement that declared: “The reality is that there is no such thing as a safe cluster bomb—and using or transferring them for use hurts the global effort to eradicate these dangerous munitions, taking us down the wrong path. The U.S. history of using cluster munitions—particularly the legacy of long-term harm to civilians in Southeast Asia—should prevent us from repeating the mistakes of our past.”
There is no justification for the Biden administration’s decision, say House Democrats who signed on to the statement. “We can and will continue to support our Ukrainian allies’ defense against Russia’s aggression,” argued Congressional Progressive Caucus chair Pramila Jayapal (D-Wash.) and the other supporters of the statement. “However, that support does not require we undermine the United States’ leadership in advocating for human rights around the world, enable indiscriminate harm that will only further endanger Ukrainian civilians, or distance us from European partners in the conflict who are signatories to the U.N. Convention opposing cluster munitions.”
On Thursday, as the news of Biden’s move circulated, two signers of the statement, Representatives Sara Jacobs (D-Calif.) and Ilhan Omar (D-Minn.) proposed an amendment to the 2024 National Defense Authorization Act that would bar the administration’s move by adding language that reads, “No military assistance shall be furnished for cluster munitions, no defense export license for cluster munitions may be issued, and no cluster munitions or cluster munitions technology shall be sold or transferred.”
Omar, who came to the United States in the 1990s as a refugee from Somalia, a country where remnants of cluster bombs posed a deadly threat for many years, was unequivocal in her argument for the amendment. “We have to be clear: if the US is going to be a leader on international human rights, we must not participate in human rights abuses,” Omar said. “We can support the people of Ukraine in their freedom struggle, while also opposing violations of international law.”
