Guest Post: “Cluster Fluster: Respecting Allies’ Political and Legal Obligations on Munition Transfers to Ukraine”
Given the controversial decision by the Administration to furnish cluster munitions to Ukraine, Lawfire® will host a mini forum on this multifaceted issue. In this installment we hear from Robert “Butch” Bracknell who will address the potential impact on allies. You can find the second installment of the mini-forum here and it focuses on the military rationale, and critiques criticism that the decision is based on “flawed logic.”
Cluster Fluster: Respecting Allies’ Political and Legal
Obligations on Munition Transfers to Ukraine
Robert Gray Bracknell*
The United States government has decided to transfer stockpiles of dual-purpose improved cluster munitions (DPICM) to Ukraine to replenish dwindling stocks of indirect fire munitions. The US decision was not merely a dualistic choice between providing the munitions or not providing them.
The decision should have been informed by political and legal considerations and diplomatic consultations regarding the impacts on NATO allies, particularly the mechanism of transfer through European territory to Ukraine.
Implications for NATO
As NATO Secretary General Jens Stoltenberg noted Friday, “It is for individual allies to make decision on the delivery of weapons and military supplies to Ukraine. So this will be for governments to decide – not for NATO as an alliance.”
His quote underscores the need for the U.S. to carefully consider how it stresses the Alliance through bilateral consultations on the transfer of DPICM to Ukraine. NATO’s unity is a far greater strategic asset to the Alliance than any particular munitions transfer decision.
The US munitions transfer buys time to replenish Ukrainian stocks of conventional indirect fire munitions, critical to the success of Ukrainian combat operations against Russian forces.
DPICM are doubtlessly extraordinarily effective against Russian personnel, military positions and equipment, including entrenched forces, thin-skinned vehicles, electronics with vulnerable antenna and transmission devices, and other delicate military equipment, such as optics and unmanned systems.
The US cluster munitions, which are reaching their storage shelf life, had reached a status wherein the US must use the munitions, transfer them, or destroy them. The political reality, however, is transferring these munitions to Ukraine places America’s NATO allies in a precarious political and legal position.
If NATO nations really value the unity NATO heads of state and political officials trumpet as the principal asset of the Alliance, the US cannot run roughshod over European concerns.
Convention on Cluster Munitions
The Convention on Cluster Munitions was adopted in Dublin, Ireland by 107 states on May 30, 2008, and was signed in Oslo on December 3 of the same year. It became binding on state parties when it entered into force on August 1, 2010, creating a binding legal obligation for 111 state parties, which have fully ratified the Convention, and 12 signatory states, who have signed but not ratified, and which are under a legal obligation not to act in a way that undermines the Convention.
Notable States that are not parties to the Convention are the U.S., Russia, Ukraine, and a handful of NATO allies, including Greece, Latvia, Poland, Romania, Turkey, Finland and Estonia. NATO member states who are state parties, bound by the convention, include Belgium, Bulgaria, Croatia, Czech Republic, Denmark, France, Germany, Hungary, Iceland, Italy, Lithuania, Luxembourg, Netherlands, North Macedonia, Norway, Portugal, Slovakia, Slovenia, Spain, (prospective member) Sweden, the United Kingdom, and Canada.
The U.S. is not a party to the Convention, and likely does not intend to become a party, because the munitions are enormously effective in combat operations. While they are – by definition – indiscriminate and pose substantial risk to noncombatants, including children, the U.S. and several other states have made the judgment their usefulness as military weapons outweighs the humanitarian concerns regarding employment of such an indiscriminate weapon.
These weapons are incapable, once deployed, of telling the difference between a legitimate military target, such as an adversary soldier, and a protected person, such as a child, a humanitarian aid worker, or even a friendly soldier traversing terrain formerly held by an adversary.
The unexploded munitions, because of their size and shape, are a particularly attractive nuisance to children – to the uninitiated, they look like a toy, until, once handled, they explode unintentionally in the hands of a child or at the feet of a farmer. The decision to procure and employ DPICM is morally weighty, but strategically and legally defensible.
DPICM munitions are clearly the type of munitions covered by the treaty’s prohibition, binding on state parties. Article 1 of the Convention notes “[e]ach State Party undertakes never under any circumstances to…use cluster munitions; develop, produce, otherwise acquire, stockpile, retain or transfer to anyone, directly or indirectly, cluster munitions; or assist, encourage or induce anyone to engage in any activity prohibited to a State Party under this Convention.”
In Article 2, the Convention defines a cluster munition as a “conventional munition that is designed to disperse or release explosive munitions each weighing less than 20 kilograms, and includes those explosive submunitions.”
US Army Field Manual 6-30 (Tactics, Techniques and Procedures for Observed Fire), Chapter 6 notes that “improved conventional munitions are base-ejection projectiles that consist of a mechanical time fuze and a body assembly containing a number of submunitions.”
It describes two types: antipersonnel and dual-purpose, and describes DPICM as “most effective against lightly armored vehicles and other material…[and] it is also effective against personnel.” There is no question DPICM are the types of munitions prohibited by the Convention.
The law of state responsibility, under customary international law, establishes a norm that a State is responsible for an internationally wrongful act when there is an act or omission that is attributable to it under international law that constitutes a breach of an international obligation of the State.
Practically, in the case of the transfer of DPICM, this means the munitions may be restricted from passing through the territory, territorial seas, or airspace of a state party to the Convention.
Challenges for the transfer of DPICM
Overflight, in particular, is complex, in that overflight rights involve a matrix of bilateral agreements regarding declaring cargo and granting of conditional overflight permission. Intense consultation between the U.S. and any intended transit state is the bare minimum required so the state can make a risk-informed, independent decision, weighing is own legal, political and reputational equities.
Transferring these munitions to Ukraine without touching the territory, airspace or territorial seas of Denmark, the United Kingdom, Germany or Lithuania (state parties to the Convention) is a surmountable obstacle – with state permission and in a permissive antiair environment, the munitions could overfly Turkey and Romania (non-state parties), or enter by sea through the Black Sea to be offloaded in a Romanian port.
Any route that touches the territory, territorial seas or airspace of a state party, including any of 21 NATO allies who are party to the convention, could constitute a violation of the Convention under the law of state responsibility.
At the very least, the potential of a violation requires that the United States be completely transparent with Allies whose airspace is contemplated for overflight about the munitions, so the state can make a fully informed decision regarding whether to permit the transit.
These negotiations have doubtless already been conducted subrosa between American and European diplomatic missions. Historical examples and allegations regarding secret detainee transit flights landing in European nations demonstrate the international political difficulties that can result from a lack of transparency with Allies and a failure to give due regard to their sovereignty.
The real legal liability here is political in nature, as is often the case with violations of international law. If Denmark or Germany, for example, allowed the munitions to transit their land territory or territorial seas on their way to Ukraine, the state has definitely violated its own international legal obligations under the convention.
Such a violation would not rise to the level of a war crime. There will never be a prosecution of a Danish or German political official in the International Criminal Court over such a breach. Possibly some party could find standing to bring an action in the International Court of Justice, but ICJ enforcement is mostly toothless. International judicial proceedings are not the real concern here.
The true enforcement mechanism is more inchoate and informal — the damage to the state’s reputation as one which stands by its political and international legal commitments, and, more importantly, the political reaction of the population of the state allowing the breach.
It is completely foreseeable that unexploded munitions, even US munitions with a relatively low dud rate, kill children and adult civilians reoccupying territory after conflict termination. Video coverage of the images of maimed children from US DPICM is the type of imagery that occasionally causes governments to fall or reorganize, or suffer other calamitous domestic political and legal consequences at home.
These dire political consequences are made more likely were it to become public these devastating munitions had transited the territory of a state party to the Convention, violating the prohibitions of Article 2 against enabling the munitions’ use. A unilateral US arming decision and munitions transfer resulting in the resignation of a NATO head of state or senior minister two years from now is the opposite of NATO unity. Rather, the result would be the type of discordant fractiousness that plays into Russian strategic design.
The US approach on this munitions transfer has to be informed by the political reality of other NATO allies and their obligations. Running roughshod over the political and legal concerns of 22 NATO member states produces the reality of disunity which impeaches NATO’s carefully culturally image of political cohesion.
NATO has to be more than a vehicle for US unilateral decisions to be validated by 29 other states. If NATO is to remain an effective alliance with political integrity, the US must do more than pay lip service to European concerns. Occasionally, US freedom of action must be limited by European and Canadian constraints, in order to reap the larger benefit of real, tangible Alliance unity. These concerns must be factored into the munitions transfer plan.
The U.S. likely should have deferred a public decision on transferring these munitions to Ukraine until after the upcoming NATO Summit. Now the decision has been made, at the very least, NATO allies should cautiously avoid this topic during the 2023 Summit to the extent possible, though the international media covering the Summit will surface this topic front and center.
Moreover, if the US transfer of DPICM must be undertaken in a way that does not impact the political and legal equities of the Cluster Munitions state parties who are also NATO allies.
The decision on providing DPICM to Ukraine is nuanced, not binary. U.S. is entitled, as a matter of state prerogative, to make its own decision on how it will assist Ukraine, and has done so. It must now execute this decision with due regard for European political and legal considerations. The cost in disunity of this decision going wrong it too high for the Alliance to bear.
 Base Ejecting Projectile: A base ejecting projectile includes a casing defining a cavity, fuse means closing the cavity at one end and an end cap closing the cavity at the other end. Actuation of an ignition device and an expelling charge generates pressurized gas within the cavity, which pressurized gas causes a piston to slide within the cavity and expel a cargo therefrom. Escape of the pressurized gas from the cavity with an attendant signature noise is precluded by sealing means which prevent the rapid escape of pressurized gas from the cavity concurrently with or subsequent to cargo expulsion. United States Patent No. 3,677,182 (July 18, 1972), available at https://patentimages.storage.googleapis.com/f0/60/4e/1c959dc0ca4716/US3677182.pdf.
About the author:
Robert Gray Bracknell is a retired Marine officer and former NATO lawyer. He is now a business, defense, and technology attorney and consultant in Norfolk, Virginia. BA, University of North Carolina; JD University of Maryland; LLM Harvard Law School; MSc (Pending Exams), University of Oxford.
The views and opinions expressed in the essay are those of the author, and do not necessarily represent those of NATO, the U.S. government, or any other person or entity.
The views expressed by guest authors do not necessarily reflect my views or those of the Center on Law, Ethics and National Security, or Duke University.
Remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!