When Barack Obama signed a ban on exporting cluster munitions into law, it was hailed as a major step toward banning them globally that “would make it almost impossible for the US to sell the controversial weapons.” “Cluster Bomb Exports Banned,” said Human Rights Watch. The law should have meant that the question of exporting cluster bombs to Ukraine was simply a nonstarter. In 2009, Congress spoke, and the president signed a law. That law prohibited the export of cluster bombs with a dud rate of over 1 percent. (Cluster bombs spread mini-bomblets over a wide area.They can fail to explode on impact and thus lie in wait for civilians for years after a war, like land mines, which is why there’s a huge international campaign against their use.) The Biden administration claims that the bombs it is sending Ukraine have a dud rate of “less than 2.35 percent.” In fact, this is almost certainly a lie, because the Pentagon itself has previously admitted to a much higher number (14 percent), and the Congressional Research Service says the true number may be up to 30 percent. But even if the Biden administration were not fudging the facts, “less than 2.35” does not mean “1,” so these weapons have not been shown to be lawful to send Ukraine.
In fact, Biden is not even pretending that his action complies with the law. “They’re not at the 1 percent level,” said Colin H. Kahl, the under secretary of defense for policy. Instead, his administration has said that Biden is simply waiving the law. But as the Washington Post notes, “there is no waiver provision in the 1 percent limit Congress has placed.” Indeed, the law is very clear. This is its full text:
Doesn’t leave much wiggle room, does it? The Post says that, since what the administration wants to do directly violates the cluster bomb export law, Biden is instead relying on “a rarely used provision of the Foreign Assistance Act, which allows the president to provide aid, regardless of appropriations or arms export restrictions, as long as he determines that it is in the vital U.S. national security interest.” But this doesn’t work. There is no plausible argument that the U.S. has a “vital national security interest” in giving Ukraine cluster bombs. The U.S. isn’t being threatened. If presidents can just say that “national security interest” justifies evading any law they like, without having to actually show how a national security interest is involved, then Congress might as well just not pass laws curtailing presidential power, because they will be entirely meaningless. This is the kind of lawlessness that George W. Bush engaged in during the War on Terror, treating U.S. code provisions and the Constitution itself as mere suggestions, to be overridden whenever the president deems it prudent. In fact, Bush arguably had more of a justification to ignore the law than Biden does here, because the War on Terror arose in response to an actual attack on the U.S., whereas no such national security justification exists here, much as we might want to help Ukraine to repel a criminal invasion.
The correct action here was clear, then: Biden needed to tell the Ukrainian government that cluster bomb exports are prohibited under U.S. law, and find some other way to assist Ukraine that did not violate the law. Instead, he chose to treat a very important and hard-won limit on weapons exports as irrelevant. When presidents do that, it of course encourages future presidents to treat the law as meaningless, eroding important norms about constraints on presidential power.
I have not even gotten to the international prohibition on cluster bombs. Many of our allies are part of the international Convention on Cluster Munitions, which totally prohibits their use. The U.S. is in the minority of countries who have refused to sign, “because [U.S.] officials believed that cluster munitions could be useful on the battlefield.” Indeed, in the Iraq War, the U.S. and U.K. used “nearly 13,000 cluster munitions containing an estimated 1.8 to 2 million submunitions in the three weeks of major combat.”
Some argue that because the United States has not itself agreed to the Cluster Munition Convention, and continues to use these heinous weapons, it is not accurate to say they are “banned” or that using them is a “war crime.” When anti-war activist Medea Benjamin objected to the U.S. sending a “banned” weapon, a Twitter fact-check claimed that the weapons are “not banned in [the] USA.” This, as we’ve seen, is misleading, because there is a domestic law banning the export of exactly these kinds of weapons. But even if the U.S. had not prohibited what Biden is doing, it should still be considered a criminal violation of international law. The U.S. has not recognized the authority of the International Criminal Court, either, but just because the U.S. rejects and undermines international law doesn’t mean that law shouldn’t be deferred to. The fact that we refuse to recognize the international ban on cluster munitions makes this country’s behavior worse, not better.
Russia has been using cluster munitions since the war started, of course, and we rightly condemn Vladimir Putin for that. Joe Biden is not wrong that Putin belongs in the International Criminal Court. Former White House press secretary Jen Psaki had used (correctly) the phrase “war crime” to describe Russia’s use of the weapons. U.S. ambassador to the U.N. Linda Thomas-Greenfield said these weapons had “no place on the battlefield” and are “banned.” She was correct. They are banned, and they don’t have any place on the battlefield. The fact that the U.S. has resisted the calls of the Arms Control Association, the International Committee of the Red Cross (ICRC), Amnesty International, Human Rights Watch and others to accept the growing international consensus does not give us grounds for continuing their use. (Indeed, U.S. use of cluster bombs in Iraq was part of what caused the international outrage that led to the international cluster bomb agreement, according to Bonnie Docherty of HRW’s arms division.) Ninety-nine percent of global cluster bomb stockpiles have been destroyed, meaning that the U.S. stands increasingly alone in claiming the right to use these hideous weapons.
Biden’s move is not just wrong because of the harm that will come to civilians from the further use of cluster bombs in Ukraine. It is wrong because it further legitimizes cluster bombs as a weapon of war at a time when we were beginning to make progress toward eliminating them. The decision threatens to have consequences beyond Ukraine by refusing to accept the principle that these weapons should not be used, period. The Biden stance, like the stance of previous administrations, is that they should not be used, unless it would be quite helpful to use them.
If Vladimir Putin had abided by the international standard, we would be less likely to be in this situation, of course. But here in the U.S., we can only choose what we do, and Putin’s use of a banned weapon of war is no excuse for sinking to the moral level of one of the world’s worst monsters. It is worth reading up on the facts of why cluster bombs horrify most of the world. The ICRC has published profiles of cluster bomb victims including the Laotians being maimed and killed decades after the United States saturated their country with bombs. Already, the Mines Advisory Group has concluded that Ukraine’s contamination with unexploded ordinance is so severe that it will take decades of difficult and dangerous cleanup work.
The Biden administration insists that it had no other choice but to send cluster bombs to Ukraine. I don’t believe it. There are plenty of other choices. Of course, the most obvious choice is to try to facilitate diplomacy and broker an agreement that no side will use banned weapons, promising to enter the cluster bomb treaty ourselves if others are willing to do the same. The U.S.’s unwillingness to give up the claimed right to use this weapon makes it more likely others will hold out and decline to enter the treaty. The U.S. has consistently adopted a weapons-first approach to Ukraine rather than trying to use whatever tools it has available to push a fair diplomatic resolution to the conflict. But even within the realm of military aid, it is highly implausible that the world’s most expensive and powerful military has no options for aiding Ukraine other than banned weapons of war. If we had abided by international law and destroyed our stockpiles, we would have to think creatively about other, legal means for aiding Ukraine, and that is precisely what Biden should have done.
Biden has reportedly “horrified” a number of Democrats with the decision, and I certainly don’t think this will help the president shore up his support among those on the left, who would like to see the administration making an effort to end the war. Seeing Biden facilitate an obvious war crime, and lie in order to do it, is alarming, if not unexpected.
The Ukraine war is constantly threatening to escalate out of control. Sending some of the worst, most indiscriminate weapons in the world into battle only makes things worse. If the 21st century is not to be a bloody horror like much of the 20th was, we have got to avoid the perilous logic that brought about the First World War, where two sides are both committed to victory and willing to perpetrate any atrocity in order to achieve it.