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President Biden’s Advocacy for a ‘Rules-Based International Order’ Blows Up with Decision to Send Cluster Bombs to Ukraine

What kind of rules-based order sees the country that claims to be the most powerful force for good in the world outside the international consensus on issues of humanitarian concern?
Children and other civilians are potential, and likely, collateral damage from cluster bombs. Photo courtesy of Shutterstock.

U.S. cluster bombs are on their way to Ukraine as part of a new $800 million U.S. military aid package. The House of Representatives on Friday failed to adopt a measure to stop them by a vote of 147 to 276. Forty-nine Democrats joined 98 Republicans in an effort to block President Joe Biden’s decision to provide the weapons to Kiev, but majorities in both parties, including Bucks County Rep. Brian Fitzpatrick, voted to allow the transfer. 

Another attempt to block provision of the weapons may take place in the Senate this week, but it is almost certain to fail as well.

Friday’s House vote, in the form of an amendment to the National Defense Authorization Act, might have garnered more support except for the decisions of the Republican-controlled House Rules Committee. The Committee did not allow a floor vote on an amendment presented by Rep. Jim McGovern (D-Mass.) for a worldwide ban on the U.S. transfer of cluster bombs. The Committee instead allowed a vote on an amendment to prohibit transfer only to Ukraine offered by Marjorie Taylor Greene (R-Ga.). McGovern and some analysts predicted allowing a vote on only the Ukraine-specific amendment sponsored by the radical right-wing Greene would diminish support for the prohibition. 

That prediction was seemingly confirmed by Rep. Chrissy Houlahan, Democrat of Chester and southeastern Berks County. Prior to the vote Houlahan said in a statement, “Victory cannot come at the expense of our American values and thus democracy itself … Cluster munitions are indiscriminate, and I strongly oppose providing these weapons to Ukraine. There are some who will say that these weapons are necessary to level the battlefield given Russia’s reported use of them. To those individuals, I challenge the notion that these weapons are the most effective support we can provide Ukraine right now. I challenge the notion that we should employ the same tactics Russia is using, blurring the lines of moral high ground.” However, on Friday Houlahan voted against the amendment to prohibit the transfer of cluster bombs to Ukraine after the House Rules Committee blocked a vote to ban their transfer worldwide but allowed a floor vote on Rep. Marjorie Taylor Greene’s amendment only prohibiting their transfer to Ukraine.

Rep. Chrissy Houlahan’s statement makes the moral case against cluster bombs with persuasive clarity. Dud rates of U.S. cluster bombs have been reduced from those rained down on Southeast Asia 50 years ago, but even if the Pentagon estimate of a 2 percent dud rate for today’s bombs is correct (and there are indications that it is higher in actual field conditions), the use of 100,000 cluster shells will leave 200,000 unexploded bomblets in the fields and villages of Ukraine. 

In addition to concern over the weapon’s ability to cause civilian casualties long after hostilities have ended, the fact that the U.S. has not joined the 2008 convention banning cluster bombs seriously undermines the “rules-based international order” that President Biden and Administration spokespersons cite as a paramount concern in the face of Vladimir Putin’s war on Ukraine. What kind of rules-based order sees the country that claims to be the most powerful force for good in the world outside the international consensus on issues of humanitarian concern? (Or as some cynics claim, does the “rules-based order” that the U.S. champions simply mean ‘we make the rules and you take the orders?’) Any genuine rules-based order will require a major reassessment of the U.S. position on cluster bombs and many other issues of international law.

And the logic that has led President Biden to send cluster bombs to Ukraine could have a chilling corollary if the same logic is employed by Russia in the future. The U.S. argument is that Ukraine’s offensive has failed to make rapid progress and conventional artillery shells are in dangerously short supply. To sustain the offensive and make progress it’s necessary to resort to cluster bombs. Applying the same logic Vladimir Putin might reason in the future, ‘Russian forces are in retreat and on the verge of collapse. Our conventional weapons have not allowed us to sustain our special military operation, therefore we must employ our tactical nuclear weapons.’

Origins of the Cluster Bomb Convention

An international agreement banning the production, use, or transfer of cluster bombs came into force in 2010. To date, 123 countries have joined the convention, including 23 of America’s 30 NATO allies. Canada, Britain, France, Germany, Denmark, and the Netherlands have all joined. The U.S., Russia, and Ukraine have not.

While the U.S. has not joined the Convention on Cluster Munitions it was, in a sense, responsible some 50 years ago for starting the international movement that eventually produced the Convention. 

From 1964 to 1973 the U.S. flew 580,000 bombing sorties over Laos, dropping more than 2.5 million tons of ordnance, equivalent to a planeload of bombs every eight minutes, 24 hours a day, every day, for nine years. The focus of the bombing was around the Plain of Jars, in Xiangkhouang Province.  Many of the bombs dropped were cluster bombs containing some 260 million bomblets or “bombies.” 

An estimated 80 million of the bomblets did not explode on impact but remained on the ground or buried just below the surface. Some of the U.S. bombing was to support the Lao Government against Pathet Lao insurgents or to interdict traffic along the Ho Chi Minh Trail, but the Plain of Jars was used as a dumping ground for bombs loaded on American planes that were turned back from runs over Vietnam by bad weather.

The toll of the bombing on the Plain of Jars was devastating. By 1969 most of the 130,000 residents of Xiangkhouang Province had fled, over 8,000 civilians had been killed, more than 11,000 children were orphaned, and 350 villages were destroyed. And the cluster bombs meant that the casualties did not stop when the bombing ended. The Mines Advisory Group of the United Kingdom estimates that 20,000 Laotians, 40 percent of them children, have been killed or maimed by bomblets and other unexploded ordnance since the end of the war in 1975. In 2012 there were still some 300 casualties per year. That number is now down to about 50 a year. Some 60 percent of continuing incidents are fatal. 

READ: Only Constructive Diplomacy Can End Russia’s War In Ukraine

Two relief organizations that were the first to respond to Laotian civilians affected by American bombing in the Plain of Jars were the Mennonite Central Committee (MCC) and the American Friends Service Committee (AFSC). (I worked for both organizations, but not in Southeast Asia.) The two groups opened offices in Laos in the mid-1970s. By 1977 they had found a simple way to reduce casualties among returned Laotian farmers cultivating their fields in the Plain of Jars. The farmers traditionally used a hoe to strike and till the ground. Frequently they would strike a buried bombie and be maimed or killed. Mennonites introduced shovels for farmers to ease into the ground instead of hoes to strike the soil and casualty rates dropped significantly. Many unearthed bombies could be safely discarded. From 1977 to 1991 MCC and AFSC joined to distribute more than 30,000 shovels to Laotian farmers.

By the 1990s MCC and AFSC were briefing U.S. Congressional delegations visiting Laos on the problems of unexploded ordnance (UXO) and their U.S. headquarters had begun public education and advocacy campaigns to ban cluster bombs. Then, in 1993 MCC contacted the UK nonprofit, the Mines Advisory Group (MAG), and hosted a 12-day tour of Xiangkhouang Province by a MAG specialist. A year later MAG teams began clearing the Plain of Jars of bombies and other UXO. Funding by a number of governments followed. The MAG mission continues to the present. (When I visited the Plain of Jars in 2019 MAG officials told me they expected to be there for another 50 years before their work was done.)

As knowledge of the ongoing civilian casualties caused by cluster bombs spread, in parallel with relief and de-mining efforts, international consultations began to address issues related to the use of cluster bombs and other new weapons in Southeast Asia. The International Committee of the Red Cross convened a series of meetings beginning in 1971 on cluster bombs, prompted in part by Sweden. In 1995 the MCC UN office in New York commissioned a New York law firm to draft model protocols banning or restricting cluster bombs and began shopping the draft at international forums. But it was not until 2008, that 107 nations approved an international agreement banning the weapons. In the intervening years cluster bombs were used by the

UK in the Falklands/Malvinas War, the U.S. in Iraq, the U.S., UK, and the Dutch in Kosovo, Russia in Chechnya, Ethiopia and Eritrea in their conflict, and by Israel in South Lebanon in 2006 (where the 40 percent dud rate of the cluster bombs Israel deployed in civilian-inhabited areas generated momentum for the 2008 convention). Nations with large stockpiles of cluster bombs, including China, Russia, the United States, India, Israel, Pakistan and Brazil have not signed the convention.

While U.S. support for a genuine rules-based order may not be around the corner, the fact that conscientious civil society organizations have had a significant constructive impact on events in the past and the fact that 147 members of Congress, more than a third of the House, are ready to ban the transfer of cluster bombs is a sign that future progress is possible.

But civilians in Ukraine and Russia have no time to spare.

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James Fine

Bucks County’s James Fine is a former Quaker International Affairs Representative and humanitarian worker and lobbyist with the Friends Committee on National Legislation.

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