On March 3, a week after Russia began its invasion of Ukraine, a video allegedly depicting cluster bombs striking civilian areas of Ukraine, including a hospital, went viral with the caption “This is a WAR CRIME!”
A cluster bomb is a type of explosive that opens in the air, dispersing anywhere between dozens and hundreds of smaller bombs over a large area. Often times, many of the smaller bombs fail to explode on impact, creating a long-lasting hazard that could explode when touched, similar to a landmine.
Several other tweets with about 20,000 likes each similarly accused Russia of using cluster bombs in Ukraine, calling the use of the weapons a “war crime” or a “violation of international law.” Even a U.S. senator, Ben Cardin (D-MD), tweeted out that “cluster bombs are crimes against humanity.”
Did Russia commit a war crime by using cluster bombs?
Yes, Russia committed a war crime by using cluster bombs. Although there is some debate over whether cluster bombs in general should be an illegal weapon of war, their use in populated residential areas is defined as an illegal “indiscriminate attack” in international law.
WHAT WE FOUND
Two international human rights organizations confirmed Russia used cluster bombs on Ukrainian cities on two separate occasions. The use of cluster bombs in a highly populated residential area is defined by international law as an indiscriminate attack — which is a war crime.
Amnesty International said it had confirmed Russia deployed cluster bombs on the town of Okhtyrka on Feb. 25, hitting a nursery and a kindergarten. There are just under 50,000 people in Okhtyrka, according to Ukrainian population estimates.
Human Rights Watch said it also confirmed Russian use of cluster bombs in at least three residential areas of the city of Kharkiv on Feb. 28. Kharkiv, which is Ukraine’s second largest city, is estimated by Ukrainian officials to have nearly 1.5 million people.
Amnesty International said the strike on Okhtyrka violated “the prohibition on indiscriminate attacks.” Human Rights Watch, referring to the attack on Kharkiv, said “inherently indiscriminate weapons in populated areas is prohibited under international humanitarian law.”
An indiscriminate attack is one that cannot be directed at a specific military objective, and consequently “are of a nature to strike military objectives and civilians or civilian objects without distinction,” the Red Cross says.
The random nature of cluster bombs’ impacts classifies them as “indiscriminate weapons,” according to experts.
Cluster bombs are a kind of weapon used to attack a wide area and deny it from an enemy, according to Oren Gross, an international law professor at the University of Minnesota Law School.
“We're talking about some sort of a canister-type dispenser that contains bomblets that disperse in the air,” said Gross. “Once the dispenser opens up, they arm after dispersal and they detonate on impact.”
The International Committee of the Red Cross, which bases its work on the Geneva Conventions, says indiscriminate attacks are prohibited by international law. By virtue, it says that weapons that are “by nature indiscriminate” are also prohibited.
“You can say, well, all weapons don't discriminate,” Gross said. “But think, for example, about the gun: A gun obviously can fire at combatants and can fire at civilians, but the person who's wielding the gun, acting within the laws and norms of warfare, can distinguish civilian from combatant, and so a gun is not a, per se, unlawful weapon.”
The Red Cross says cluster bombs are weapons that have “been cited in practice as being indiscriminate in certain or all contexts.”
In an attempt to more explicitly ban cluster bombs, 110 countries signed the 2008 Convention on Cluster Munitions, which prohibits the use or collection of cluster bombs. But Russia, Ukraine and even the United States are among the countries that have not signed it. So Russia isn’t bound to the 2008 convention.
“So does that mean that there's nothing else that we can do about it?” Gross said. “Not so fast because there are also traditional rules that apply to means and methods — and by means we're talking about weapons systems that would apply, even outside of the treaty context.”
Gross said international law classifies the use of a weapon based on two things: If the weapon itself is unlawful, and if the weapon is being lawfully used. Although there is debate over whether cluster bombs are inherently unlawful weapons, there are certain uses of cluster bombs that are undeniably unlawful by the rules of war.
“Let's assume that the Russians can argue, in good faith, that cluster munitions are in fact lawful,” Gross said. “If they were to use it in an area where there are only Ukrainian soldiers, that might be okay. But if they're using cluster munitions against residential areas — heavily populated — then that in and of itself, even if the weapon is lawful, that use of the weapon is unlawful.”
Since cluster bombs strike a wide area, they cannot strictly strike military targets while avoiding civilian targets in residential areas. Therefore, international law treats the use of cluster bombs in residential areas as an indiscriminate attack.
While some violations of the international rules of wars do not rise to the level of war crimes, according to Gross, an indiscriminate attack or use of an inherently indiscriminate weapon is a war crime. Indiscriminate attacks are also on the United Nations list of war crimes.
More from VERIFY: No, the UN doesn’t have the authority to charge people with war crimes