Guest Post: “Why Biden Administration Decision to Provide Cluster Munitions to Ukraine Is Long Overdue”

I’m pleased to post the third installment in our mini-forum on the U.S. decision to furnish Ukraine with cluster munitions.  In the first installment (here), Butch Bracknell addresses the decision’s potential impact on allies.  The second installment of the mini-forum (here) focuses on the military rationale supporting the decision, and critiques the claim that the decision was based on “flawed moral logic.”

Today’s third installment from Lawfire® contributor Brian Cox addresses the decision’s implications for public relations and diplomatic engagements, to include “bringing focus to the methods that have been developed over the years to stigmatize cluster munitions – and how this messaging should be countered going forward.”  His essay is a real eye-opener and adds much to this discussion.

Why Biden Administration Decision to Provide Cluster Munitions to Ukraine Is Long Overdue

by Brian Lee Cox

The Biden administration recently announced the approval of a new arms package for Ukraine that will, for the first time, include the provision of cluster munitions. This decision follows media reporting indicating that the administration had been “actively considering” whether to supply Ukraine with cluster munitions for some time. Ukrainian officials and lawmakers have reportedly been urging the administration to do so for months, but to no avail until now.

It would have been better to supply Ukrainian forces with cluster munitions long before Russia’s full invasion commenced in February 2022 – while the military buildup at the borders was underway and Biden was “convinced” that Russia would invade. Still, when it comes to supplying cluster munitions to Ukraine, late is better than never.

This view contradicts what may appear to be the prevailing perspective that the United States should not provide Ukraine with cluster munitions – and indeed that the weapons should be banned altogether. However, sentiments have shifted recently – especially now as Ukraine’s long-awaited counteroffensive in the east and south continues to meet fierce resistance from Russian forces in heavily-fortified defensive positions.

Indeed, a congressional staffer revealed in a recent media report that testimony from U.S. military officials about the potential benefits on the battlefield “helped move the needle” on Capitol Hill. Also, a recent letter signed by four influential Republican lawmakers urges President Biden “to immediately provide cluster munitions…to the Ukrainian Armed Forces.”

As the administration begins to supply cluster munitions to Ukraine for the first time, what are the domestic and international legal and policy considerations at stake? What are the public relations and diplomatic implications of the decision to arm Ukraine with cluster munitions? And what role, if any, should Congress play in the decision to make the transfer?

Maj. Gen. Charlie Dunlap (ret.) examines legal considerations involved with the pending transfer in his contribution for this mini-forum here on Lawfire, and I also analyze legal and policy implications from a domestic and international law perspective in a companion article on Articles of War.

For present purposes of assessing the implications for public relations and diplomatic engagements, the analysis begins by bringing focus to the methods that have been developed over the years to stigmatize cluster munitions – and how this messaging should be countered going forward.

Countering the Manufactured “Ick Factor” with Balanced Messaging

Public perceptions related to cluster munitions have been shaped by narratives that have been meticulously curated over the years by advocates and activists seeking an international ban on the weapons.

Mark Hiznay, who is a senior researcher in the Arms Division for Human Rights Watch, recently noted that the Oslo Convention “proceeded without really any regard to the major military powers.” According to Hiznay, activists believe “the stigma, the so-called ‘ick factor,’ of using cluster munitions will eventually start to influence” the behavior of American political leaders.

As Erin Hunt of Mines Action Canada recently recalled, advocacy campaigns related to landmines and nuclear weapon nonproliferation “set a model for future negotiators to build on the precedents created in previous humanitarian disarmament treaties and strengthen the stigma and effectiveness of those treaties.” Lessons for generating and propagating stigma in support of political action campaigns were employed in the “decade of success” of stigmatizing cluster munitions.

The campaign to ban cluster munitions has been summarized by Denise Garcia as a five-stage process, which includes a “gradual re-framing as a problem and as an evil by moral entrepreneurs” (Stage 2), “activists campaign for change through campaign for international treaty making” (Stage 3), and “bastions of recalcitrance remain” after the treaty is created (Stage 4). According to Garcia, the “ban of cluster bombs is about military doctrines succumbing to the higher authority of moral and humanitarian concerns.”

This is undoubtedly true, but the stigma involving cluster munitions that has been manufactured for over a decade has calculatingly skewed the vital balance between military necessity and humanitarian concerns heavily in favor of the latter. The “gradual re-framing” of the narrative in order to sway public opinion and generate political pressure globally has been achieved by vociferously amplifying a narrow account of humanitarian interests while discounting or discrediting the military utility of cluster munitions.

While there is no doubt that cluster munitions would pose a hazard to the civilian population in Ukraine both during and after the conflict, a far greater threat to civilians has been active since the full invasion began: the Russian Armed Forces.

Kyiv Convoy as Example of Effective Use of Cluster Munitions

Like any other weapon, cluster munitions are a tool designed to incapacitate or destroy enemy personnel and equipment. Some tools, including cluster munitions, are especially well suited for achieving specific tasks. It is worth pondering how different the conflict would be today if Ukraine had access to considerable stocks of cluster munitions early in the full invasion when Russian forces amassed a forty-mile-long convoy to support a planned decisive attack on Kyiv.

A small unit of drone operators reportedly “destroyed two or three vehicles at the head” of the convoy, “and after that it was stuck.” While Russian forces were stalled in place for four weeks, they reportedly looted surrounding homes and shops while using civilians as human shields. Eventually, the remaining personnel and equipment were forced to withdraw to eastern and southern Ukraine.

Ukrainian artillery and drones harassed the formation of Russian troops and equipment while the convoy was stalled. However, employing an overwhelming volume of cluster munitions – instead of unitary munitions alone – could have turned the entire contact zone into a highway of death for the Russian invaders.

It is impossible to know how many atrocities were later perpetrated by Russian personnel who withdrew with the convoy and how many attacks on civilian infrastructure were carried out by the surviving troops. However, the battle of attrition that continues now in the east and south of Ukraine would almost certainly be markedly different today if the Russian personnel and equipment in the infamous Kyiv convoy had been annihilated while they were stalled on the highway rather than living to fight another day.

Employing cluster munitions to destroy targets over a wide area could have enabled this preferred outcome.

Managing Public Relations and Diplomatic Implications

The apparent reluctance the Biden administration has exhibited before now regarding the request from Ukraine to provide cluster munitions can be attributed to two primary factors: public opinion and the potential diplomatic implications. These twin concerns share a common foundation, so it is useful to consider them both in tandem.

Denise Garcia is correct to note that the “ban of cluster bombs is about military doctrines succumbing to the higher authority of moral and humanitarian concerns,” but “moral and humanitarian concerns” are also well served in Ukraine by destroying invading personnel and equipment. The military effectiveness of cluster munitions is deliberately downplayed by activists seeking to ban their use or protect the ban, and this must be the focus of messaging for the Biden administration – both for domestic public opinion and in diplomatic engagements.

The domestic audience needs to understand the utility of cluster munitions in order to overcome the stigma that has been cultivated by advocates and activists over the years. Partners and allies who have ratified the Oslo Convention would do well to reevaluate their decisions based on the reality of the conduct of hostilities in Ukraine, as their governments likely “succumbed” to the same messaging that accentuates the moral and humanitarian concerns involving the use of cluster munitions that persists today in the “bastions of recalcitrance” that remain.

Each sovereign nation is free to ratify any international convention based on domestic national priorities and public sentiment. Countries that have ratified the Oslo Convention must respect America’s sovereign prerogative not to do so, just as America must respect their decision to join the ban.

Because it has not ratified the treaty, the United States is free to provide cluster munitions to Ukraine. This too is a sovereign decision that must be respected by partners and allies, regardless of their own national priorities and sentiments. The Biden administration should emphasize this reality during diplomatic engagements involving the decision to support the defense of Ukraine by providing cluster munitions.

Transferring Cluster Munitions Through Europe to Ukraine

In a separate contribution for this mini-forum, Robert Gray Bracknell raises diplomatic concern related to the law of state responsibility as it applies to European allies such as Denmark, the United Kingdom, Germany, or Lithuania that have ratified the Oslo Convention – or Convention on Cluster Munitions (CCM).

As Bracknell suggests, any route used for transporting cluster munitions to Ukraine “that touches the territory, territorial seas or airspace of a state party…could constitute a violation of the Convention under the law of state responsibility.”

While potential diplomatic consequences associated with routing cluster munitions through the territory of partners and allies that have ratified the CCM are undoubtedly a legitimate concern, it would seem that the State Party itself – say, Denmark, the UK, Germany, or Lithuania – would need to take action inconsistent with the CCM in order for state responsibility to become a consideration.

If the International Law Commission publication “Responsibility of States for Internationally Wrongful Acts” is used as the model for an articulation of customary law, the act in question must be “attributable to the State” and constitute “a breach of an international obligation of the State” to be characterized as wrongful (art. 2).

Turning then to the CCM to determine what qualifies as a breach pursuant to that treaty, States Party agree not to do the following with regard to cluster munitions: a) “use”; b) “develop, produce, otherwise acquire, stockpile, retain or transfer to anyone, directly or indirectly”; and c) “assist, encourage or induce anyone to engage in any activity prohibited to a State Party under” the convention.

Pursuant to the text of the treaty, the activities of most concern would be for a State Party to stockpile, retain, or transfer cluster munitions to Ukraine, either directly or indirectly. This provision does not appear to prevent the United States from possessing cluster munitions on the territory of a State Party as long as the host nation itself does not participate in the stockpile or transfer of the munitions.

Interoperability and Attributing Breach of CCM to State Party “Itself”

The interoperability provision of the CCM (art. 21) seems to support this understanding by allowing a State Party to “engage in military cooperation and operations with States not party to [the] Convention that might engage in activities prohibited to a State Party,” provided that the State Party does not “itself stockpile or transfer cluster munitions” (emphasis added).

Based on a detailed assessment of the relevant provisions of the CCM and the articles on state responsibility, then, it is not clear that a State Party “has definitely violated its own international legal obligations under the convention” by permitting cluster munitions to transit through its territory (emphasis added).

Whether or not State responsibility for internationally wrongful acts and violation of obligations pursuant to the Oslo Convention are implicated if the United States itself transfers or stockpiles cluster munitions in the territory of a State Party while shipments are in transit to Ukraine, Bracknell is unquestionably correct to raise concern related to the diplomatic implications involved in the transfer.

Thankfully, as should be expected, messaging reflected in current media reporting suggests that the Biden administration carefully considered the diplomatic implications inherent in supplying cluster munitions to Ukraine before deciding to do so. Regardless of any potential diplomatic concerns involved, there is no legitimate reason to believe American partners and allies will incur any legal consequences related to the decision of a country like the United States that has not ratified the CCM to provide cluster munitions to Ukraine.

This includes, incidentally, the recent suggestion by a Canadian journalist that “Canada and its allies may be required to sanction Ukraine if the weapons get used.” The provision of the Oslo Convention cited in this news story does require each State Party to “take all appropriate legal, administrative and other measures to implement [the] Convention, including the imposition of penal sanctions to prevent and suppress any activity prohibited to a State Party under” the treaty.

However, this provision applies only when the conduct prohibited pursuant to the treaty is “undertaken by persons or on territory under [the] jurisdiction or control” of the State Party. There is no plausible requirement, then, by which Canada or other countries that have ratified the CCM may be required to sanction Ukraine simply because cluster munitions supplied by the United States are utilized by the Ukrainian military.

Role of Congress Differentiating Between Special Interests and National Interests

A final consideration regarding the decision to provide cluster munitions to Ukraine to be addressed here is the role of Congress in the debate. At least twice since the full invasion of Ukraine began in February 2022, a coalition of progressive lawmakers has addressed a letter to President Biden urging him to review the U.S. policy on cluster munitions.

The first, from April 2022, claims, in part, that cluster munitions have “lost their military relevance as the U.S. military strives to mitigate civilian deaths in war through guided munitions.” The second letter, from December 2022, calls for the “United States to become a leader in banning cluster munitions which have a long history of causing disproportionate and indiscriminate harm to civilians.”

The rhetoric presented in both letters closely resembles the narrowly-tailored narratives that have been propagated by advocates and activists for over a decade to stigmatize cluster munitions in support of the push to establish and expand a global ban.

Indeed, a letter from June 2023 signed by 38 organizational members and partners of the U.S. Cluster Munition Coalition advances the same rhetoric while citing both recent congressional letters for support. The significant overlap in rhetoric gives the distinct impression that select lawmakers have accepted the role of high-profile spokespersons advocating on behalf of the special interest groups represented in the Cluster Munition Coalition.

Drawing on a central theme of a previous Lawfare article I wrote exploring the effect of divergent approaches to civilian harm mitigation, though, it is worth pondering whether the missions and visions of organizations such as Landmines Blow!, Win Without War, Nonviolent Peaceforce, and Peace Action align with genuine U.S. national security and diplomatic interests.

If there is a divergence between the special interests for which select lawmakers are advocating and national interests, the president should make that abundantly clear in private talks with relevant legislators or, if necessary, in public messaging as well.

Role of Congress and the Constitutional Balance of Powers

Most importantly, though, the constitutional balance of powers must be respected and protected. The executive is conferred with the authority to ratify treaties, such as the Oslo Convention, with the advice and consent of the Senate, pursuant to Article II of the U.S. Constitution. That no American president has signed the treaty or submitted it to the Senate for advice and consent in the now 15 years since the Oslo Convention was adopted indicates that insufficient political will exists to support joining the ban.

This hasn’t stopped Congress from attempting to ban cluster munitions through the legislative process. On at least three occasions – in 2007, 2009, and 2017 – lawmakers from both chambers have introduced matching bills that would prohibit the procurement and use of cluster munitions that exceed the 1% dud rate threshold.

Not once has such a bill advanced out of committee.

The legislative process is messy. Promulgating law is challenging, especially in the increasingly polarized political environment of today. Consensus and compromise are essential to the legislative process, just as the Founders intended.

There is good reason, though, that the Framers apportioned executive power – and primacy in foreign affairs through the authority to “make Treaties” – in the president. “As in the field, so in the cabinet,” writes John Jay in Federalist No. 64, “there are moments to be seized as they pass, and they who preside in either should be left in capacity to” advance the national interest. When “any circumstance should occur which requires the advice and consent of the Senate,” the president “may at any time convene them.”

That has not happened with regard to the Oslo Convention. Likewise, the decision whether to provide cluster munitions to support the defense of Ukrainian territory and sovereignty is a matter of foreign policy that must be decided by one person alone – not 535 plus 1. Whether advocating in favor of the transfer of cluster munitions or against it, Congress continues to resemble theimpetuous vortex James Madison expected the separation of powers provisions embedded in the Constitution to constrain while advocating in favor of ratification more than two centuries ago.

Resolution by committee is a recipe for ineffectual and confused foreign policy. On this and innumerable other matters of foreign affairs, legislators would serve national interests well by deferring to the executive and focusing on their primary assigned constitutional role on behalf of their constituencies and the American public: legislate.

Concluding Reflections

Joe Biden recently reaffirmed his administration’s commitment to provide “unwavering U.S. support” to Ukraine. Honoring this pledge requires the United States to provide every tool – consistent with any relevant domestic and international legal obligations – Ukraine requires to defend its territory and sovereignty against Russian aggression.

Fulfilling Ukraine’s request to provide cluster munitions is an important measure of that support. Domestic law allows the president to approve and satisfy the request. The aspersion “internationally banned cluster munitions is merely a clever play on words developed and amplified by activists seeking to stigmatize the weapons and sway public opinion to generate political pressure.

The use and transfer of cluster munitions is banned “internationally” – but only for those countries that have ratified the Oslo Convention. The United States has not. Neither has Ukraine – or Russia. The refusal to supply Ukraine with cluster munitions presents a tactical advantage to Russia that can make Ukraine’s operational and strategic goals more difficult to achieve.

Ukraine believes cluster munitions will be useful in support of the ongoing counteroffensive. American military analysts agree. The Biden administration has finally mustered the political courage to fulfill the request. Continuing to withhold this effective tool while declaring America’s “unwavering support” to Ukraine would be morally indefensible.

Defusing the stigmatizing narratives that are sure to follow now will require balanced messaging that emphasizes military utility as well as the acknowledged elevated risk to civilians during and after the conflict. Administration messaging should also counter narratives denouncing “indiscriminate” weapons or “internationally banned cluster munitions” with balanced messaging and legal analysis.

Joe Biden’s commitment to a future Ukraine that is “free, sovereign, and democratic” can only be achieved if the United States and its partners and allies provide every tool for Ukraine to achieve any lawful advantage possible on the battlefield.

For the United States, this includes providing cluster munitions to Ukraine. Now that the new arms package has been approved, the Biden administration should do so with no further delay while preparing to deliver more if Ukraine requests additional allocations in the future.

About the author: 

Brian L. Cox is a doctoral candidate lecturer and J.S.D. candidate at Cornell Law School and a a visiting scholar at the University of Ottawa Faculty of Law (Common Law Section). Brian retired in 2018 from the U.S. Army after 22 years of military service. He served as an airborne infantry soldier, combat camera operator, airborne infantry officer, and for seven years as a military legal advisor. His combat deployments include Iraq from 2003-2004 as a combat camera operator and Afghanistan from 2013-2014 as the chief of international and operational law for Regional Command-East in Afghanistan.

Brian also served as a military prosecutor, federal prosecutor, brigade judge advocate, and military magistrate while he was a military legal advisor. His military awards, decorations, and qualifications include the Ranger Tab, Senior Parachutist Badge, Pathfinder Badge, Air Assault Badge, Bronze Star Medal, Meritorious Service Medal, Basic and Advanced Collateral Damage Estimation Certification, Joint Firepower Certification, and Special Victim Unit Investigator Certification. Brian holds an LL.M. from Queen’s Law and a B.A. (International Relations) and J.D. from the University of North Carolina.

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 (see also here).

Remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!



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