President Biden has approved the provision of U.S. cluster munitions for Ukraine, with drawdown of the weapons from Defense Department stocks due to be announced Friday.
The move, which will bypass U.S. law prohibiting the production, use or transfer of cluster munitions with a failure rate of more than 1 percent, comes amid concerns about Kyiv’s lagging counteroffensive against entrenched Russian troops and dwindling Western stocks of conventional artillery.
It follows months of internal administration debate over whether to supply the controversial munitions, which are banned by most countries in the world.
Cluster weapons explode in the air over a target, releasing dozens to hundreds of smaller submunitions across a wide area.
More than 120 countries have joined a convention
banning their use as inhumane and indiscriminate, in large part because of high failure rates that litter the landscape with unexploded submunitions that endanger both friendly troops and civilians, often for decades after the end of a conflict. The United States, Ukraine and Russia — which is alleged to have used them extensively in Ukraine — are not parties to the convention. Eight of NATO’s 31 members, including the United States, have not ratified the convention.
The principal weapon under consideration, an M864 artillery shell first produced in 1987, is fired from the 155mm howitzers the United States and other Western countries
have provided Ukraine. In its last publicly available estimate, more than 20 years ago, the Pentagon assessed that artillery shell to have a “dud” rate of 6 percent, meaning that at least four of each of the 72 submunitions each shell carries would remain unexploded across an area of approximately 22,500 square meters — roughly the size of 4½ football fields.
“We are aware of reports from several decades ago that indicate certain 155mm DPICMs have higher dud rates,” said a defense official, one of seven Pentagon, White House and military officials who spoke on the condition of anonymity to discuss the sensitive decision. The defense official used the acronym for Dual Purpose Improved Conventional Munitions.
The Pentagon now says it has new assessments, based on testing as recent as 2020, with failure rates no higher than 2.35 percent. While that exceeds the limit of 1 percent mandated by Congress every year since 2017, officials are “carefully selecting” munitions with the 2.35 percent dud rate or below for transfer to Ukraine, Pentagon spokesperson Brig. Gen. Patrick Ryder said Thursday.
The defense official said details of the new assessments were “not releasable,” including how, when and where the tests were done, and whether they included actual firing exercises or virtual simulations. Military manuals say these weapons cannot be fired in training because they are part of war reserve stockpiles.
There is no waiver provision in the 1 percent limit Congress has placed on cluster munition dud rates, written into Defense Department appropriations for the last seven years. Biden would bypass it and Congress, according to a White House official, drawing down the munitions from existing defense stocks under 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.
The final U.S. decision to provide them to Ukraine was first reported
Thursday by the Associated Press.
Although the United States has used cluster munitions in every major war since Korea, no new ones are believed to have been produced for years. But as many as 4.7 million cluster shells, rockets, missiles and bombs, containing more than 500 million submunitions, or bomblets, remain in military inventories, according to estimates by Human Rights Watch drawn from Defense Department reports.
A 2022 Congressional Research Service report
to lawmakers noted “significant discrepancies among failure rate estimates” of cluster weapons in the U.S. arsenal, with some manufacturers claiming 2 to 5 percent, while mine clearance specialists have reported rates of 10 to 30 percent.
Nonproliferation experts said that the Pentagon’s assessed 2.35 percent dud rate most likely refers to aging shells with updated fuses designed to improve their ability to self-destruct, but that it was impossible to know without access to the testing data.
Advocates who have warned against using cluster munitions say the claimed lower dud rates are the result of testing in idealized and unrealistic conditions that don’t account for real-world scenarios. The Army’s artillery manuals have said even the military’s own dud rates can increase depending on the angle of impact and type of terrain in which they fall.
“It’s dismaying to see the long-established 1 percent unexploded ordnance standard for cluster munitions rolled back as this will result in more duds, which means an even greater threat to civilians, including de-miners,” said Mary Wareham, advocacy director of the arms division of Human Rights Watch.
“The lack of transparency on how this number was reached is disappointing and seems unprecedented,” Wareham said.
While Russia has used cluster munitions far more extensively, Ukraine has also allegedly deployed these weapons during the war, using its own Soviet-era stocks or shells obtained from other countries. A new HRW report released Thursday said Ukrainian use “caused numerous deaths and serious injuries to civilians” in attacks in the city of Izyum and other locations in 2022. Ukraine has denied using cluster munitions.