Cluster Munitions and The War in Ukraine

Now that the dust has settled a bit on this I wanted to take the chance to more thoroughly address the topic of DPICMs being sent to Ukraine to provide better context on the American decision to supply cluster munitions to Ukraine.

The first of the main criticisms of this decision revolves around people claiming that sending DPICM rounds to Ukraine is a war crime. Calling something a war crime—rightly—carries a significant amount of emotional weight to the topic to which it’s being applied. In this case, various critics have charged that the United States is committing a war crime by virtue of 111 other countries having ratified the Convention on Cluster Munitions.

This is however a fundamental misunderstanding of what constitutes a war crime. War crimes are not simply something that one finds morally odious. A war crime emerges either when a country violates a treaty to which they are a signatory, or when they violate international customary law that is established through widespread observance of international norms.

Neither the United States, Ukraine, nor Russia are signatories to the CCM, and there is no custom on not using cluster munitions in the international community by virtue of the fact that most signatories to the CCM have marginal stocks of artillery. There’s no expectation in the international realm that cluster munitions will not be used. The CCM even has provisions that allow the militaries of signatory countries to continue to operate alongside countries that utilize cluster munitions.

It is not the same thing as a country pulling out of the Geneva Conventions and then expecting to not be tried for crimes following a war by saying “Well we didn’t sign so it’s okay for us to torture POWs!”

There is however a second criticism that is worth talking about with regards to the actual morality of the choice to send cluster munitions to Ukraine in consideration of the very real UXO threat posed by the usage of these weapons.

I think context matters significantly. The Ukrainians are not involved in a COIN fight where the combat is low intensity and infrequent employment of PGMs suffices to destroy or suppress an enemy that is often found in an urban environment alongside civilians.

The Ukrainians are 1 1/2 years into a conventional fight in which millions of artillery rounds are expended along the front. There are minefields constantly being placed across vast swathes of Ukrainian fields.

The front in Zhaporizhia is currently saturated with unexploded ordinance, where the introduction of these munitions will not end up meaningfully altering the hazards that will litter these fields for years to come. Saying that DPICM rounds will cause a lasting UXO problem at this point is to completely overlook what the actual reality on the ground is.

It’s also worth pointing out here that the Ukrainians have committed to cataloging and mapping where these weapons will be used. This is their country and their own people who will be at threat from munitions left behind, and there is no real reason to expect that they are not motivated to keep their lands clear of unexploded ordinance following the cessation of the conflict.

There’s also little threat of civilian injury from their direct usage either. They’re being provided to help the Ukrainian military punch through fortified Russian positions in non-urban terrain. These are active combat areas where there should be absolutely no civilian presence.

The Ukrainians do have a duty to restrict their usage of these cluster munitions to non-urban terrain, however. Using cluster munitions—as Russia has frequently done—in urban environments will absolutely kill civilians. The fact that cluster munitions are not war crimes in and of themselves does not mean their employment cannot be done in such a manner that would constitute a war crime.

This all being said, I’d also argue that supplying cluster munitions to Ukraine should end once the United States has the production capacity to fully support the Ukrainian forces with 155mm rounds. Although it won’t make a significant difference in terms of UXO at the end of the war, the United States should still take the path that minimizes potential civilian harm when possible.

If we can avoid using rounds that produce more UXO on average while still fully supporting the Ukrainians, we should do so.