What we can VERIFY about bans on cluster bombs and whether using them is a war crime

The United States is sending controversial cluster munitions, which are also known as cluster bombs, to Ukraine as part of the latest aid package in the fight against Russia. 

A cluster bomb is a type of explosive that opens in the air, dispersing dozens to hundreds of smaller bombs over a large area. Human rights groups have decried their use over threats to civilians, since they randomly scatter small bombs over a wide area. 

Oftentimes, many of the smaller bombs also fail to explode upon impact, creating a long-lasting hazard that could explode when touched – similar to a landmine.

After President Joe Biden announced the United States’ decision to supply cluster bombs to Ukraine, a video of former White House Press Secretary Jen Psaki saying in 2022 that Russia’s use of the weapons “would potentially be a war crime” made the rounds on Twitter. A VERIFY reader asked if the use of cluster bombs is considered a war crime.

Many people on social media also claimed that cluster bombs are banned in more than 100 countries.

QUESTION #1

Are cluster bombs banned in more than 100 countries?

THE SOURCES

THE ANSWER

Yes, cluster bombs are banned in more than 100 countries. 

WHAT WE FOUND

According to the United Nations, 123 countries have agreed to an international treaty banning the use of cluster bombs. The United States, Russia and Ukraine are not among those countries. 

Governments throughout the world negotiated and adopted the Convention on Cluster Munitions treaty in 2008, the International Committee of the Red Cross (ICRC) says. In August 2010, the treaty became binding for countries that agreed to it. 

The treaty “prohibits the use, production, acquisition, stockpiling, retention and transfer of cluster munitions,” the ICRC says. It also requires countries to destroy any stockpiled cluster munitions, clear areas contaminated by cluster munition remnants and offer assistance to victims of cluster munitions.

The Convention says on its official website that the treaty aimed to address “the humanitarian consequences and unacceptable harm to civilians caused by cluster munitions.” 

Countries that have signed a treaty, on the other hand, express their intent to comply with it, but this action is not binding, according to the Netherlands government. 

QUESTION #2

Is the use of cluster bombs considered a war crime?

THE SOURCES

THE ANSWER

For countries that have not banned them, the use of cluster bombs on their own is not a war crime. But the weapons could be used in a way that qualifies as one. 

WHAT WE FOUND

Countries that haven’t ratified the Convention on Cluster Munitions treaty, such as the United States, Russia and Ukraine, can use cluster bombs without violating international law. 

However, there are some cases where the use of cluster bombs by any country could violate international law and be considered a war crime. These include attacks that indiscriminately target civilians. 

An indiscriminate attack is one that cannot be directed at a specific military objective, and consequently “may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof,” the ICRC says.

Individual people, rather than countries as a whole, are charged with war crimes, Wareham explained. An indiscriminate attack would rise to the level of a war crime “if the person who orders or carried out the attack does so willfully or recklessly,” she said. 

Russian armed forces have used cluster munitions in attacks against Ukraine that have injured hundreds of civilians, and damaged homes, hospitals and schools, Human Rights Watch says. Psaki was referring to some of these attacks in her 2022 comments, according to transcripts of the briefing.

Ukraine’s Defense Minister Oleskii Reznikov said on Twitter that the country will not use cluster munitions in urban areas, or cities, “to avoid the risks for civilian populations.”

“Cluster munitions will be used only in the fields where there is a concentration of Russian military,” Reznikov wrote. “They will be used to break through the enemy defense lines with minimum risk for the lives of our soldiers. Saving the lives of our troops, even during extremely difficult offensive operations, remains our top priority.”

Wareham expressed concerns about Reznikov using the phrase “urban areas” since civilians can still be present in smaller areas outside of largely populated cities.

The Associated Press contributed to this report.