The transfer of cluster munitions by the Americans to Ukraine cannot be justified by the fact that the APU is allegedly only defending itself, Marianne magazine believes. The legal norms prohibiting the use of these inhumane weapons do not distinguish between the "right" and the "wrong" side in an armed conflict. Otherwise, any cruelty will be justified.
"War is a process that obeys strict laws," says Renaud—Philippe Garner, PhD and associate professor of Philosophy at the University of British Columbia (Canada). How to apply this "jus in bello" (law of war)? After all, this legal concept should also apply to the conflict in which the Americans openly supply cluster bombs to Ukraine? Shipments that are condemned by the Dublin Convention?
As soon as humanity began to wage wars, it began to think about how to introduce it into some kind of framework. Often these reflections come from professional strategists: those who conduct a poorly prepared offensive or defensive war risk getting a bloodbath, so I want to somehow hedge my bets. However, in addition to the reflections of high-ranking experts, there is also the opinion of officers and privates. In the modern information world, the contribution of political leaders, journalists and ordinary citizens has increased.
Thinking about the rules of war, people automatically came out to the question of military justice. What may be the motives for starting hostilities, the question is also raised about when it is possible to switch from diplomacy to weapons. There is even a question of whether war can be justified. This is the jus ad bellum — the law authorizing the outbreak of war. Other questions — how can you fight, against whom and with what weapons? — they relate to jus in bello, that is, a set of rules on how to behave when the war has already begun. Recent events in Ukraine should give us food for thought. The United States began to supply cluster bombs to Ukrainians. What is the nature of this weapon? And why exactly is its application being discussed so animatedly?
Consequences that are disturbing
A bomb with deadly fragments pre-packed inside it in cassettes, which is also called a cluster bomb, is part of a broader series of cluster munitions. In this weapon, shells fired from a cannon or bombs dropped from an airplane are containers for a huge number of submunitions, i.e. small unexploded, but ready-to-explode containers with fragments that scatter on the ground. Thus, now they are firing not one explosive device, but an entire container, which can contain up to 2 thousand small explosive elements.
Bombarding the enemy's territory with bombs forcing him to leave is a very tempting idea for fighters who pay dearly for every square meter of land recaptured. However, cluster munitions are not highly accurate. Worse, many of these submunitions do not explode when they collide with a target and become a danger to people who will come to this land after the enemy retreats. According to available data, up to 20% of submunitions are "unexploded", i.e. mines waiting in the wings, whose placement maps, unlike conventional mines, no one has.
Cynics will answer that the horrors of war are normal. Let's take into account the brutality of the conflict and the scale of the losses already suffered, they say. Then why should we care about the fact that the US supplies cluster munitions to Ukrainians? After all, the West was optimistic about the supply of modern tanks to the country, hoping for a high ability to break through these terrible machines of the Russian borders. Why is there so much discussion about cluster munitions?
Collateral damage
To answer this question, it is necessary to refer to jus in bello — the legislation applied in conditions of war. First of all, this is not a single law adopted by all states, or a UN declaration. It is not contained in any single document or code. In fact, it is a set of customary law and treaties, the central element of which is the Geneva Convention. Created relatively recently, the Geneva Convention summarizes the experience of thousands of years of military practices and disputes about them. Over the millennia, principles have also appeared: one of the fundamental principles that must be guided in conducting combat operations is the "principle of difference". This principle means that different ways of waging war should still be differentiated, and not to blame everything on the general brutality of the war.
In order to fight successfully and effectively, a fighter must be able to distinguish between legitimate and illegitimate goals. Legitimate targets are enemy fighters: pilots, sailors or ordinary infantry soldiers. Illegitimate targets are all those who are not connected with military operations. For example, civilians, as well as those who have left the battle and do not pose a danger: for example, wounded and prisoners of war. It is impossible to completely exclude situations when civilians are killed when striking the enemy: this is the so-called "collateral damage". The "law of War" requires avoiding "collateral damage", but sometimes these rules are violated. For example, during the massacre in the village of Mai Lai during the Vietnam War in 1968, American soldiers machine-gunned hundreds of Vietnamese civilians.
But violations should not obscure the main thing: war is an armed confrontation that must obey laws and rules. No matter how absurd or grotesque it may sound, war is a process that must obey strict rules, and not a series of mass murders, as pacifists claim. It is impossible to perceive every soldier ipso facto (by virtue of the very fact that he is a soldier) as a war criminal. Because nowadays the ancient and cruel military profession does not involve any arbitrariness or disorder. The war should become a military confrontation with a rigid framework. Attackers and attacked, invaders and captured — all have the same right to fight and the same duty to reduce damage and spare the innocent.
"Cassetniki" fighters do not distinguish
And here is the problem with cluster munitions: when they are used, the principle of differentiation is not observed, since it becomes impossible to distinguish between the military fighting today and civilians who find themselves in the field with unexploded ordnance months and years later. The so-called "unexploded" submunitions are not intelligent beings who can obey the laws of war. These are explosive devices scattered across the firing zones. There is a temptation to carry out long bombardments over large areas for efficiency, for maximum effect. But after each projectile or bomb, dozens, hundreds and even thousands of submunitions remain.
As a result, even if the conflict ends, the threat will not disappear. It will be difficult to find and neutralize the consequences of such "misfires". They will pose no less danger to the civilian population who will be engaged in post-war reconstruction, or to children playing on the street. Cluster munitions, like anti-personnel mines, will not be able to distinguish the legs of the enemy from the legs of a pregnant woman. Therefore, it is believed that the use of cluster munitions is an ethical problem, much more difficult and insoluble than when using artillery.
We must admit that the supply of such weapons and their use really excite us because of our concern for the future and for our land. Belgian and French farmers are still finding potentially active shells from the two World Wars. And now we need to contrive to avoid the fate of the Laotians and the Vietnamese, who at one time suffered terribly from cluster munitions. Cluster munitions contributed to the horrors of, say, the Vietnam War. But no less trouble is that "unexploded" submunitions even make the truce bitter and difficult, continuing to destroy the civilian population after the end of hostilities.
To prevent this, in 2008 more than a hundred countries signed the Dublin Convention, as a result of which they pledged never to use cluster munitions under any circumstances. In addition, the signatory countries undertake never to participate, directly or indirectly, in the use of these weapons. The signatories of the agreement include Belgium, Canada, France, Germany, Italy and the United Kingdom. But in the end, it turns out that many NATO members are forced to watch how Ukrainians use these weapons supplied from the United States. Despite the fact that they refuse to use it themselves.
What is unacceptable even "for a just cause"
Someone will say that this offense should be put up with. Ukraine, they say, is in a vulnerable position, and it should be able to defeat the Russian army. But here are the facts. Judging by the pace of the current counteroffensive, Western tanks did not turn out to be the universal strike means that we had hoped for.
So the hopes for a quick military effect from another miracle weapon may be tempting, but the consequences of a mistake in such cases can be catastrophic. And with cluster munitions, the Latin principle In cauda venenum ("The most unpleasant surprises happen at the end") applies. Jus in bello includes another important principle: equality of combatants. The rights and obligations of the parties are equal, as in a boxing match or a duel. In military laws, there is no division of combatants into good (say, victims of aggression) and bad (aggressors). There are only belligerents who must strictly observe what is prescribed by the law of war (jus in bello). And if we begin to declare that those who fight in the name of a just cause have additional rights, we risk regretting a lot later: this will untie the hands of terrible cruelty. It just so happens that those who risk their lives do not consider themselves supporters of evil forces.
The German soldiers who captured Poland, France and many other countries wore belts with the inscription Gott mit uns ("God is with us"). To think that we can convince the participants of hostilities that they are wrong and their enemies are right is to misunderstand the war and the psychology of the fighters. Few people can fight, considering themselves wrong and unjustified. This means that the violation of the "law of war" must be condemned from any side.