August 9, 2023
From Internationalist 360

The UK armed forces can do almost anything they like with cluster bombs – while evading legal consequences – as long as it’s someone or something else ultimately deploying them.

Joe Biden’s decision to transfer cluster bombs to Kiev has sparked widespread public controversy, and strained previously indomitable NATO unity on responding to Russia’s invasion, with member state leaders lining up to criticize the move. UK Prime Minister Rishi Sunak has been the most vocally condemnatory, discouraging both transfer and use of the widely-proscribed munition, and firmly declaring London will not follow Washington’s lead in supplying Ukraine.

The intensely public rift prompted Biden to make a brief layover in London on July 10th, ahead of NATO’s annual summit in Vilnius, to meet with Sunak personally. Following a 40-minute discussion in Downing Street, during which the pair reportedly affirmed the “rock solid” bond between their nations, the premier’s official spokesperson claimed he had robustly reiterated London would “stand by our obligations” under the 2008 Convention on Cluster Munitions (CMC), to his US counterpart.

The Guardian hailed Sunak’s position in a forceful editorial that same day. Arguing Russia’s use of cluster bombs “is not a reason to further drag down international norms”, it went on to boldly assert the US “should never have deployed them”, “should not have rejected the convention banning them”, and “should not be supplying them to Ukraine”. The outlet proudly noted that over 120 states have joined the CMC, of which the UK was a leading advocate, signatory, and ratifier.

Yet, entirely absent from the media and political fracas that has erupted over the past week was any acknowledgment the UK served as key driving force behind specific clauses in the Convention, allowing signatory countries to provide training in the use of cluster munitions to allied militaries that are not parties to the CMC, and logistically support their use. From London’s perspective, this would, of course, include Washington, and Kiev.

That omission may in part be attributable to the military directive covering UK armed forces assistance on cluster munition use being concertedly concealed by the Ministry of Defence. It was only disclosed in 2021, over a decade after the Convention came into force in London, and even then mistakenly, in response to Freedom of Information requests from an independent researcher. A lengthy ensuing battle to keep the information public domain was only successful due to the Information Commissioner’s Office intervention.

UnHerd can reveal the contents for the very first time. The directive starts by noting the Cluster Munitions (Prohibitions) Act 2010 “implements the Convention’s obligations in UK law,” and prohibits cluster bomb use “from taking place at all within the UK, and by all UK nationals anywhere.”

However, it goes on to state that Article 21 of the CMC – which is reflected in the Act – “enables continued international military operations and international military cooperation between signatory and non-signatory States, which might engage in activities prohibited in the Convention.” The Act moreover provides “legal defences for UK personnel operating with [cluster munitions] alongside allies from non-signatory states,” such as the US.

These “interoperability provisions” do not authorise the UK to “develop, produce or otherwise acquire” cluster bombs, and UK military personnel may not be “part of a crew (within a cockpit) or individual weapons platform that dispenses” these munitions. However, they “ensure that NATO and other coalition operations can proceed without UK personnel being liable to prosecution for undertaking normal operational duties” if cluster munitions are used by non-signatories.

“Normal operational duties” described in the directive are extraordinarily broad. While the UK armed forces “must not be in a position where they expressly request, or direct” the use of cluster munitions “to achieve a task,” soldiers “engaged in international military operations or international military co-operation” are able to “call for fire support” from an allied military, even if they know that will come in the form of cluster munitions.

They can furthermore refuel and service allied “aircraft, vessels and vehicles,” and “perform logistical planning, handling, storage, maintenance and transport services” for associated materiel, which “may” include cluster bombs. They can also train allied soldiers in their use.

In other words, the UK armed forces can do almost anything they like with cluster bombs – while evading legal consequences – as long as it’s someone or something else ultimately deploying them. The secret directive provides a very clear framework for London assisting Saudi Arabia’s use of UK-made cluster munitions, during its grinding, almost decade-long air war against Yemen.

During that conflict, every day UK-supplied aircraft flown by UK-trained pilots pounded Yemen with UK-made bombs and missiles, which were then repaired and serviced in Riyadh by UK contractors, including Royal Air Force engineers. Frequently, the targets were civilians and civilian infrastructure, including refugee camps, funerals, hospitals, schools, and weddings. The Saudi-led coalition also purposefully targeted crops, farmland, and fishing vessels, in order to starve the population.

When Riyadh’s deployment of UK-made cluster munitions was publicly exposed in mid-2016, Amnesty International warned that if any of London’s “several hundred specialist support staff working closely with the Royal Saudi Air Force” were implicated in their use, this “would constitute a clear breach of the UK’s legal responsibility” under the CMC. Except, it absolutely wouldn’t, according to then-secret Ministry of Defence doctrine.

There is another covert corollary to London’s ratification of the CMC. US diplomatic cables released by WikiLeaks show that in May 2009, then-Foreign Secretary David Miliband approved a loophole that would allow cluster munitions to be stored on British territory, contrary to the Convention’s obligations. Officials in Whitehall moreover maneuvered to ensure the ruse was concealed from parliament, in case it “complicated or muddied” debate around the CMC.

This loophole allows Washington to store cluster weapons as “temporary exceptions,” and on a “case-by-case” basis for specific military operations. A cited case was cluster munitions sited on ships off the coast of Diego Garcia, a British Indian Ocean territory, which has been occupied by the US military since its indigenous inhabitants were forcibly expelled in the 1960s.

It could well be that US cluster munitions based on British territory will soon make their way to the frontline in Ukraine, for a “specific military operation.” Upon arrival, it’s conceivable the profusion of UK special forces there will rely on “fire support” from jets bearing cluster loads. They may also teach their counterparts in Kiev how to use this weaponry, which could extend to targeting assistance, as London provided to Riyadh during the Yemen conflict.

As such, Rishi Sunak’s lofty critical pronouncements over Washington’s transfer of cluster munitions to Ukraine, and his country’s steadfast commitment to adhering to its CMC obligations, ring entirely hollow, and give every appearance of posturing for the purposes of political capital. According to Ministry of Defence doctrine, and UK law, London can facilitate, enable, and effectively encourage Kiev’s use of cluster munitions – and the realities on-the-ground dictate it is likely, if not certain, that will happen.