The Indiscriminate Rain of Cluster Bombs

The U.S. sent cluster munitions to Ukraine, and Vladimir Putin warns “the right to take reciprocal action.”

Photo illustration: Elise Swain/The Intercept; Photos: Getty Images, AP

The United States sent cluster munitions to Ukraine, bombs banned by 123 countries due to how they kill and maim indiscriminately over a wide area and for years after a conflict. This week on Intercepted, Marc Garlasco — the military adviser at PAX, a Dutch nongovernmental organization where he works to protect civilians in armed conflict, joins Jeremy Scahill and Murtaza Hussain to discuss how cluster munitions kill civilians during war and long after, and why their use — even by the United States — should be considered a war crime.

[Intercepted intro theme music.]

Jeremy Scahill: This is Intercepted.

Welcome to Intercepted. I’m Jeremy Scahill.

Murtaza Hussain: And I’m Murtaza Hussain.

JS: Well, Maz, there’s a lot of talk right now in the United States and around the world about the escalating war in Ukraine. There’s a pretty dramatic situation that’s been unfolding in Crimea and in the waters surrounding Crimea, and a lot of questions about where all of this is headed.

In the U.S. media, for the first time in a long, long time, there was discussion of munitions called cluster bombs, and the reason that this was being talked about is because the Biden administration very publicly acknowledged that it was going to be giving — and, in fact, has started to give — Ukraine a fresh batch of cluster bombs. And these are really, really devastating, indiscriminate weapons; they’re essentially flying landmines that are dropped down over large areas, and they scatter into tiny bomblets.

And I, as a young reporter, Maz, in 1999, I was in what was then called Yugoslavia — but, at the time, it was just Serbia and Montenegro — but I was in Serbia when the United States was leading a 78-day bombing campaign against Serbia. This was what was referred to at the time as the Kosovo War. And the NATO bombing wasn’t just happening in Kosovo — which, at the time, was a Southern province of Serbia — but was happening throughout Serbia and parts of Montenegro.

In May of 1999 — I believe it was May 7th, 1999 — NATO warplanes conducted an attack on the southern Serbian city of Nis, and the alleged target of the attack was supposedly the airport in Nis, but they dropped cluster bombs that then ended up hitting, basically, in the center of the city. And the bombs scattered and just blasted everywhere, and one of the places that these cluster munitions exploded was in a very crowded marketplace, and that attack ended up killing at least 14 civilians — and that was documented by Human Rights Watch. Local figures put the number much higher.

But then there were subsequent deaths that occurred as a result of some of the bombs not exploding when they were dropped, these so-called dud bombs. And, in fact, Serbia, up until 2009, there were still cluster munitions that were being recovered from various parts of the country.

But when I went there — and I had never really seen the aftermath of a missile attack, and I had just started doing international reporting — and you could see when we walked to the marketplace some days after this bombing had happened, it was something kind of shocking, because it almost looked like a fossil in the concrete, because when the bombs hit and the charge on it hit, it almost spidered out. It was as though concrete was actually playdough, in terms of the scatter marks that it made.

And [I] also then talked to people who had witnessed it, and it was horrifying, because they described watching fellow human beings shred into meat, basically. They were describing how human beings looked like they had been turned into ground meat.

I’m sorry for such a graphic description, but when you meet people whose loved ones were killed in this manner, or their neighbors were killed in this manner, it haunts you. And I don’t know that I would’ve been so closely paying attention to this particular bomb, had I not spoken to people whose lives were ruined by cluster bombs, but I then really studied what these were. And they are a terrifying, indiscriminate weapon, and they continue to kill years after they’re actually dropped.

I often think about that trip that I took to this city of Nis in 1999 in Serbia, and I think it really gave me a very clear sense that these bombs were dropped by forces being controlled by the government of the country that I came from.

Jeremy Scahill on Democracy Now! In 1999: …And, you know, you see shrapnel from these cluster bombs. And, in fact, in some places, it’s fossilized into the ground. The epicenter of the blast leaves a little crater in the cement, and then you see — almost like the rays of a sun going out from this epicenter — fossilized marks from where the shrapnel or smaller bombs from the cluster bomb spread out.

And another concern that people have here is that some of these haven’t exploded; it’s like landmines sitting in hospital compounds or outside of schools or along the road. And I actually saw some of the cluster bombs — and I know you’ve been talking about that on Democracy Now! as well — but a lot of people here seem to be trying to move on with their lives, but it’s always in the back of their head, that they could get bombed at any moment.

It really is the fact that civilians feel here that they have been targeted, that civilian infrastructure has been targeted, and so they really are afraid. And in Nis, they’re more afraid during the day than they are at night, because that’s really when NATO has hit them the heaviest.

JS: You know, some years after this 1999 attack, I had a chance to confront the man who was the supreme allied commander of the NATO forces during that war, and that was the U.S. General, Wesley Clark. He was running for the democratic nomination for president in 2004. And I chased him in New Hampshire, and then I questioned him about a number of very, very terrible attacks that had taken place against civilians. And Clark admitted to me that, yes, when I said, you used depleted uranium, you used cluster bombs, and he said to me: “Sure did.”

And then I asked him directly about the cluster bombing of the Nis marketplace.

Jeremy Scahill: And what about the bombing of the Nis marketplace with cluster bombs? Shredding human beings?

Wesley Clark: It was terrible. But, you know, in that instance, if we’ve got the same incident, there was a cluster bomb that opened prematurely. It was an accident. And every one of these incidents was fully investigated, all of the material from the Yugoslav government was given to the International Criminal Tribunal. Plus, as the NATO commander, I made a full report to the International Criminal Tribunal, and it was all investigated.

The pilots who did it, nobody could have felt worse than the pilots who did it. And I got a letter from a man in Serbia who said, you killed my granddaughter on the schoolyard at Nis. I know how he must have felt, and I felt so helpless about it. And every night before I let those bombs go, I prayed that we wouldn’t kill innocent people. But, unfortunately, when you’re at war, terrible things happen, even if you don’t want them to.

JS: I was doing that reporting for Democracy Now!, both the confrontation of Wesley Clark and the reporting that I had done during the 1999 NATO bombing. And then when I did my book and film, Dirty Wars, I then reported on President Obama authorizing a cruise missile attack on a village in Yemen, and it killed several dozen people, the majority of them women and children.

And Maz, you have a piece that you wrote recently at The Intercept, where you’re looking at the recent impact of cluster munitions in Ukraine. And, of course, Ukraine and Russia both have been known to use cluster bombs in Ukraine. Human Rights Watch documented that, as far back as 2014, the Ukrainian government forces were using cluster bombs. We, of course, have also seen these reports that Russia is using them.

But Maz, talk a little bit about what you reported, what Human Rights Watch is saying about the current situation with cluster munitions, and the devastation that they’re wreaking on Ukraine right now.

MH: Sure. So, Russia has heavily used cluster munitions during its invasion of Ukraine, but the Ukrainian military has also employed them in territories Russia controls. And Human Rights Watch did a report based on a series of attacks last year in the town of Izyum by the Ukrainian military, and that town was, at the time, controlled by Russia. And it documented the killing of eight Ukrainian civilians by Ukrainian cluster munition usage, and about the wounding of about 15 more. That town was liberated by the Ukrainian military, but there are other territories, many, many other territories under the control of Russia at the moment which the Ukrainian military now has requested and received delivery of cluster munitions in order to help facilitate an offensive to take them back.

So, as you mentioned, and as we’re going to discuss further, cluster munitions, when they’re used, the violence and the devastation is not limited to the time that the war is taking place. They can detonate months or years later. There have been cases of cluster munitions from the Vietnam war, the Gulf War, which still detonate today. Now, the Ukrainian military for this offensive is employing these weapons provided by the United States, and they’ve already killed Ukrainian civilians. And we’re almost certain that, for many, many years to come, as they’re employed, they’re going to continue killing civilians for years and years. And the same devastation that you witnessed in Nis is going to keep taking place, even after attention moves from this war, when this war is over, and normal life goes back. We’re going to be seeing casualties and wounding of individuals for a very, very long time to come.

JS: You know, Maz, as I was watching the way that this played out in the U.S. media, and among the political classes — and we’ll also talk later about some of the legislative efforts that took place, where some Democrats and some Republicans actually tried to block Biden from transferring these cluster munitions to Ukraine. And there was a recent episode of Deconstructed that was really excellent, describing why those legislative efforts failed.

But as I watched part of the commentary, where we heard people arguing that, well, Russia is using cluster bombs, so it’s only fair that Ukraine gets to use cluster bombs. My mind traveled back to the days immediately following 9/11, when there was the National Prayer Service, and the minister who gave remarks — this is just three days after 9/11 — said, “Let us not become the evil we deplore.” And it’s always stuck with me.

And, in fact, Barbara Lee, who we’ve had on the program, the Democratic Congressperson from California, from the Bay Area in California, when she then, that same day — September 14th, 2001 — gave her speech on the House floor, when she became the only member of Congress to vote against the Authorization for the Use of Military Force; this was the blank check given to Bush and Cheney to wage their global war. She also cited those remarks, “Let us not become the evil we deplore,” in warning against going too far in the U.S. response to 9/11.

I think Barbara Lee — and we’ve talked about this before — has been proven prophetic and right in her opposition, and I think people that are raising the alarm bells of caution about the U.S. posture on Ukraine are going to be proven to be right, too. This logic that, because a nefarious force does something evil, that our response to it should be to do the same, or to use the same kind of munitions. And, of course, it’s going to be Ukrainian civilians that pay the ultimate price for this.

I think it’s sometimes worth remembering those people like Barbara Lee, or the minister at the National Prayer Service, who actually taught us something before it was too late, and not enough people listened.

MH: Well, it’s very difficult and unpopular to make a point like that, at the moment when emotions are most high. And certainly there are, justifiably, a lot of strong emotions about the Russian invasion of Ukraine, and all the devastation that’s caused. And yet we can’t abandon — if the war is being fought for anything beyond just a narrow political interest — we can’t abandon our principles, and the entire basis that we’re making a moral case to defend Ukraine, or the Western countries making a moral case to defend Ukraine.

And it’s particularly egregious in this case, because there’s been so much international effort over the past decade and a half to ban cluster munitions globally, or to stigmatize their usage, specifically in response to scenes like what you witnessed in Nis many years ago, that have taken place all over the world because of these weapons. And to see the U.S. government facilitating the transmission and use of these weapons now in Ukraine, in a war where, ostensibly, they’re fighting to defend liberal democracy — in their own framing of it — it’s very disheartening. And it’s actually going to lower the stigma in years to come when countries want to employ these weapons, and they say, hey, why are you scolding us for doing this? Or why are you morally blaming us for using it? You yourself used it in Ukraine. You helped facilitate the use in Ukraine.

So, the knock-on effects can be even beyond what we’re seeing in Eastern Europe.

JS: And Maz, actually, we’re joined now by one of those people that you’re talking about, who has spent years trying to raise awareness about the impact of cluster bombs, and trying to agitate to get the United States, Russia, other countries to actually sign on to this convention, along with 123 other countries, saying we will not manufacture or use these cluster bombs.

I’m talking about Marc Garlasco. He’s the military advisor at PAX, which is a Dutch NGO. He works there to protect civilians in armed conflict. He was also a war crimes investigator for the United Nations in Afghanistan, Libya, Syria. He’s following the developments in Ukraine with Russia’s war very, very closely. He also co-hosts his own podcast, called The Civilian Protection Podcast; that’s part of Civilians in Conflict, which is a U.S.-based NGO.

Marc Garlasco, thanks so much for joining us here on Intercepted.

Marc Garlasco: Hey, thanks for having me. I really appreciate you caring about this so much.

JS: So, Marc, I’m going to ask you to explain the basic fundamental issue of what cluster munitions are, the impact that they have when they’re used, but also the impact that they continue to have if they are dropped and they don’t actually explode.

But first, I just wanted to get your reaction to the position that the Biden White House has taken here. A lot of the social media commentary and commentary from people who are supportive of transferring the cluster munitions to Ukraine basically boils down to, whatever weapons Ukraine needs to fight off this illegal invasion, we should give them. And when you get to a more granular level, people will say: Well, Russia is using these also, so it’s only fair that Ukraine be able to use them as well.

But the Biden White House has come out with a defense of transferring these cluster munitions to Ukraine. So, first of all, just your response to what Biden personally has been saying, and the position of the administration.

MG: Well, look, I just want to start by saying I am fully supportive of Ukraine and their defense in this unlawful invasion by Russia, but there have to be lines drawn, there must be limits. And transferring a weapon that has been banned by 123 states, including two-thirds of NATO, is just a step too far, a bridge too far and, honestly, I think is morally bankrupt, particularly when you look at the Biden administration, and the White House’s response when it was revealed that Russia was using cluster bombs.

And let’s be clear here. Russia has used cluster bombs throughout this conflict, they’ve used them to target civilians. There was one incident in 2022, the single largest number of civilians killed by Russia was in a cluster bomb strike. It was in the city of Kramatorsk. There was a train station and 58 civilians were killed by Russian cluster bombs in that attack. And the Biden administration’s response when it first came out that the Russians were using cluster bombs was: Hey, this is potentially a war crime.

And so, the White House sees Russia’s use of cluster munitions as a war crime, but we’re perfectly fine with sending them to Ukraine. Which, for me, is just a morally bankrupt position and, I think, highly questionable. And so, I’m very troubled by it.

I’ve been looking at cluster bombs for the past 20 years. The U.S. has not used them since 2003. There was one incident in 2009 when a single weapon was used, but in 20 years of war against ISIS and others, the U.S. has not used these weapons. And so, I’m shocked, and really incredibly dismayed, particularly with a Democratic president which has been so supportive of the different weapon bans, and no use. And so, I’m just very upset, as you can tell.

JS: Walk us through the mechanics of what cluster munitions are, how they function, and what they do when they hit.

MG: So, a cluster munition — or, as many people call them, a cluster bomb — is basically a large carrier, right? It’s a big bomb. So, it can be an artillery shell, it can be a rocket, or it can be an aerial bomb dropped by a plane. And so, it’s kind of this mother bomb, and when it goes over the target, it opens up and it releases anywhere from dozens to hundreds of smaller bombs. And these are called either bomblets or submunitions by the military, and they pretty much use that interchangeably.

And the idea here is that it gives the military a reach and an economy of force. Alright, so you’re using one bomb to drop many, many bombs. And that’s great — you know, from the military’s perspective, that gives them an ability to reach out and drop a lot of munitions in a single strike, so they don’t have to send many aircraft or many munitions over, and it’s a lot cheaper and easier.

And what the military likes about them is also what’s problematic about them, right? So, they cover a very large area. This is a saturation weapon, this is not a precision weapon like we see a bomb going into a window, for example, or taking a tank out directly. You’re covering about a football field with potentially hundreds of these small bombs. And that’s great, if you’ve got tanks or infantry in the field that you’re trying to attack. Not so great if you’re using it in a populated area, or near a populated area, a city or a town or whatnot.

So, you have a problem, first of all, during the attack, right? So, when the strike happens, and the mother bomb opens up, that cargo section opens up, and all of these hundreds of bombs come down, now they may hit a tank, they may hit some infantry, but you also have a very high potential of civilian harm, for them to come down and hit civilians, to hit homes, etc. And so, that’s the first problem, right? The first problem is at the time of use. It’s such a wide area of effect.

The second problem is, these bombs don’t work very well, they have a very high, what’s called a dud rate, or unexploded rate. So, just think about it like anything else that you go out and buy, right? You buy a television in an electronics shop, and you take it home, you plug it in, TV works, super. But some of those TVs may have had some problems in the manufacturing process, and that’s why you have warranties. You plug it in, it doesn’t work, you bring it back to the shop.

Bombs, you’re not bringing them back to the shop. And not only that, we’re not talking about a low dud rate here. We’re talking about fairly high dud rates, which leave large, large minefields on the ground. Now, when we talk about the specific munition that the U.S. is sending, it’s the M864. And please excuse me, alright, we’re going to throw some numbers out here, and I’m going to try not to be too technical, but it’s important to have an understanding, a baseline of some of the technicalities here, because part of the Biden administration’s argument really lies on the technical lines.

So, the M864 is an artillery shell, and inside the M864 you have 72 [of] what are called DPICMs, Dual-Purpose Improved Conventional Munitions. Now, it’s dual-purpose because it has both an anti-armor and an anti-personnel capability, right? So, it’s got a shape charge in it that will blow through about two-and-a-half inches of armor. And then, when the munition explodes, you’re sending out fragments out to about 50 feet, so they’re lethal to about 50 feet.

And inside the M864 are these 72 DPICMs, and you have two types, the M42 and the M46. It’s really immaterial here, the difference between the two. The 46 is a little bit thicker, has a little bit more of an anti-personnel capability. But when the weapon is fired, there are a number of steps that must happen for it to operate correctly. So, the carrier munition opens up, the base slides off, the 72 small D-sized battery bomblets come out. And they have these nylon ribbon stabilizers on them. And the nylon ribbon spins, and that’s going to do two things.

One, it’s going to stabilize the munition so it hits at the right angle, because if they hit it at anything more than a 45-degree angle, they won’t explode. But also, when the ribbon spins, it arms the bomb. And if that ribbon gets caught up, doesn’t spin correctly, etc., the bomb won’t operate correctly. And then they also get caught in trees, and in vegetation, etc., so you’ve got a problem with that.

But that process of arming the munition and getting it to finally activate is highly problematic, because many of those steps sometimes don’t happen, the bombs hit each other in the air, and then they fail. And the failure rate, according to the White House, is two-point-three-five percent. The problem with that is, that’s just bullshit. The military’s own numbers from U.S. testing for the specific munition that we’re talking about here — the M42 and M46 DPICMs — is actually 14 percent. And then we have another DPICM that the U.S. has that’s not being used here, it may be sent eventually, and that has even higher [failure rate], that has a 23 percent.

But let’s just deal with a 14 percent dud rate for a moment. We’re sending hundreds of thousands of these artillery shells. For every 100,000 artillery shells, that is a million unexploded cluster munitions on the ground. Those are cluster munitions that kids can pick up, people can get hurt when they go back to their home, go back to their farm. And, not only that, we also need to talk about the military utility of this. I think we need to get into that.

MH: One thing I did want to ask you, Marc, is, you mentioned that the last time the U.S. used cluster bombs was in 2009. Do we know anything about the circumstances of that employment of cluster munitions, and why the U.S. military has formerly moved away from using the weapons in battlefields?

MG: OK, so, the last time that the U.S. used cluster munitions at all was a single strike in 2009. But I think it’s important to recognize that the last time that the U.S. used DPICMs was 2003, so we haven’t used those in 20 years. And when we use DPICMs, that was an extreme use.

So, when we look back at the Iraq invasion in 2003, in the Iraq invasion, the U.S. used about 2 million DPICMs, alright? And when you look at a 14 percent dud rate, that’s a lot of unexploded bombs on the ground. In the first Gulf War in 1991, we actually used 13 million. So, an extraordinarily high number of unexploded weapons on the ground.

There was a single cluster strike in 2009 in Yemen that was recorded. There was an investigation by Human Rights Watch into the attack. We only know that cluster munitions were used in Yemen in that single strike because of the duds that were found by HRW researchers —

JS: Marc, can I just intervene on that? I, in my book [and film] Dirty Wars, one of the central focuses of it was this cluster bomb strike in the Yemeni village of al-Majalah. It was a strike that was carried out under the direction of Admiral William McRaven, who at the time was the commander of the Joint Special Operations Command. And before we talk about, actually, what happened there, apparently Obama himself was furious when he realized that it had killed nearly three dozen women and children. The official intelligence that had been presented to the president by JSOC was that this was an Al Qaeda training camp, and it does seem as though there were some individuals among the dead who had connections to Al Qaeda, but the majority of the people that were killed in that strike were documented to have been civilians.

And, actually, it was a Yemeni journalist named Abdulelah Haider Shaye who went to that scene, and he was the individual who photographed what you were describing, some of the unexploded munitions, but also some of the fragments that were there.

So, researchers — initially it was Amnesty International — were able to find serial numbers on some of the weapons, and then it became indisputable that this was a U.S. strike. And what was interesting about it, beyond the fact that you’re saying they hadn’t used them from 2003 until that point, was that the initial story was that Yemen, that the Yemeni government of Ali Abdullah Saleh, that they had actually conducted a strike against Al Qaeda, and it was a great success. And only because of this Yemeni journalist, and then Amnesty International, and then Human Rights Watch, did the world know that in fact the U.S. had, in fact, carried out this cluster bomb attack. And it was done with cruise missiles, which raises an issue that you were talking about before.

Cluster munitions are quite versatile, they can be dropped from a variety of platforms, but in the case of Yemen and this village, it was about three dozen civilians who died. Allegations between 11 and 14 people that the U.S. alleged were Al Qaeda, but it was a cruise missile attack that Obama had authorized based on intelligence from JSOC.

MG: I want to thank you for the clarification on that, and it raises an important point where the U.S. has not transferred cluster munitions to other countries, even as they’ve requested them. The Saudis, for example, have asked the U.S. for cluster munition transfers, and that never happened, because the U.S. was so concerned with the potential civilian harm. And so, it’s quite shocking to me that we’ve put all that aside now.

MH: Marc, in recent years, have we seen the use of cluster munitions in other conflicts around the world? I know that they were rumored to be used in Israel’s war in Lebanon in 2006, and also by Russia and Georgia. How has the use of cluster munitions looked in those conflicts in terms of civilian harm?

MG: Yeah, unfortunately, it’s more than a rumor, it’s a reality. We’ve seen widespread use of cluster munitions in both the war in Lebanon by Israel in 2006, I was there and I investigated it. And, also, by the Russians in Georgia. I was there in 2008 and found submunitions there. And it wasn’t just the Russians, it was also the Georgians. And the Georgians actually fired DPICMs on the Russians, and there were massive and catastrophic failures of the Georgian DPICMs, which eventually completely littered parts of the Georgian countryside, and never actually made it to the area where Russian forces were.

And then I was, for two years, on the Syrian war crimes team for the United Nations, and investigated just shockingly widespread use of cluster munitions by the Russians throughout Syria. And we unfortunately now have a situation where you have these countries that are contaminated by these munitions, and civilians continue to die from them. In fact, in both Laos and Cambodia, we still see civilians being killed from the duds from the Vietnam War. So, these weapons are persistent, and my concern is they will continue to kill for decades.

But you’re absolutely right, there has been widespread use. The Israelis fired several million submunitions into Lebanon. I was in Southern Lebanon in 2006, and not only did I find, just, dozens of civilian casualties at the time of use, but when I was there in 2006, and then later in subsequent in investigations, we continued to find civilians, particularly children, who see these almost as a toy-like object. You know, pick them up and play with them. [We] continue to see Lebanese children harmed by these.

And it wasn’t just Israel firing them into Lebanon. I mean, Hezbollah also fired some submunitions into Israel, so there are parts of northern Israel that also had to deal with this. And there’s just [a] shocking number of use by the Russians in both Georgia and in Syria.

So, it’s unfortunate. And this is partly why the world has banded together, and 123 nations have agreed that these weapons must be outlawed.

JS: Yeah, and the U.S., Russia, and Ukraine, none of those three countries have ratified that treaty. But I’m curious, because we’re talking from an American perspective, what is the U.S. defense, Marc, of not signing that convention, when so many countries around the world have agreed that these are essentially flying landmines that continue to maim children across the globe when they’re used?

MG: Yeah. So, there had been a desire by the U.S. to come on to the treaty when it was initially proposed, but there was a lot of discussion inside the administration, particularly pushed by the U.S. military concern of Russia and China, and the need to have munitions that cover wide areas, in case you have these just large numbers of tanks and soldiers coming into areas where American troops were going to combat them.

And so, basically, much like the argument that the U.S. has made for not outlawing landmines — based on the Ottawa Treaty banning landmines which, again, most of the world has signed up to — you know, this concern that there’s going to be some existential war somewhere that we’re going to need to use these legacy munitions and rely upon them.

So, in Korea, for example, there’s this concern that so much of the Korean DMZ has been mined, and so the U.S. continues to rely on landmines there. But also that we would need to rely on cluster munitions in any conflict against the Russians or Chinese. Which really strikes me when we see the direction that the U.S. military is actually going with their weapons and weapon developments, and the replacement munitions that have been developed to replace these DPICM submunitions.

The U.S. has been relying on very high tech precision weapons, and cluster bombs are low tech, unguided, and also do not operate correctly, right? They don’t work well. You’ve got 14 percent of them [that] don’t blow up, which is not a good thing. You may get economy of force, but you have to use so many of them that you then have a contaminated area that you can’t even maneuver through. And so, with the shift in the U.S.’s production and procurement to more precision munitions, it’s shocking to me that we would say, no, we have to rely on these legacy weapons that are so problematic. So, that’s basically what the position has been.

And we in the NGO community have been hoping that there would be some movement by the Biden administration in both the landmine ban and cluster ban. Unfortunately, we haven’t seen that happen.

MH: Recently, there’s been a lot of coverage of this decision to transfer cluster weapons to Ukraine, which has been very favorable to the decision. I want to read you a particular quote from The Wall Street Journal’s editorial board. They said that, “Our only criticism of this decision is that it could have done more good earlier.”

A lot of the case for people made for transferring the weapons to Ukraine is that it’s their own calculations, their territory, and they need to determine what their needs are in the context of this conflict themselves. What do you say to that argument, in terms of the view in juxtaposition with a broader campaign to ban cluster munitions globally?

MG: Yes, I have two issues when we look at this statement of why Ukraine needs to have these banned weapons. The first is, I really push back strongly on the military utility of the actual munition.

So, when you look at the U.S. use of DPICM in the Iraq invasion, there was an after-action report put out by the Third Infantry Division, where they wrote and actually called the specific weapon that the U.S. is sending to Ukraine, they called it “a loser.” Alright? A loser. This is what the U.S. military called it. And they questioned, they wrote in it, is it a legacy of the Cold War? And, in their after-action report, they spoke about how they didn’t want to use it because the dud rate was so much higher than advertised, and they had problems maneuvering through it.

You know, when you drop these weapons, the idea is, you’re going to attack the enemy, and then your forces will fight through. Well, let’s imagine now that you’re Ukrainian forces, and you’re going to drop hundreds and potentially thousands, if not millions, of these onto the trench lines of the Russians, and then assault through them. Suddenly, you have a minefield that you’re going to transit through, and my concern is, more Ukrainian soldiers may be killed by these munitions after they’ve been dropped and assault through, than you kill Russian soldiers on the initial attack.

When we look at the way that the United States Marine Corps had problems maneuvering into different areas of Iraq because there was very poor communications of where the U.S. Army had used DPICMs. And if you look at the Human Rights Watch report that I coauthored — it’s called Off Target — and that speaks about the conduct of the war in 2003, it goes through the Iraq invasion and how the U.S. and Iraqis fought, and also the U.K. And it really speaks to some of these problems from a military point of view.

We interviewed British soldiers, for example, who told us that they felt more likely to use these submunitions because they felt that the dud rate was lower than it actually was. And then, after the use, they saw it was so problematic, and so many of their forces got caught in these minefields and then had to extricate themselves. And so, that’s one concern, right? From a military utility perspective.

The other concern really goes to, I think, a fairly interesting article that Max Boot put out in The Washington Post. And I really appreciate Max. Certainly a conservative commentator, but a Never-Trumper, for sure. And Max unfortunately puts forward this idea that, because Ukrainians have voted for Zelensky, and because Ukrainians have accepted their leadership in their government, that the decisions by that government really should not be questioned. And, from a democratic perspective, I find that highly problematic.

You know, that’s like saying that just because people in Florida voted for Ron DeSantis, and he has now turned to Sunshine State into the “Gun-shine State,” where anyone can carry a gun. If you’re killed by a gun in Florida, well, too bad for you, you voted for the guy, or somebody else voted for the guy. So, just because Zelensky and others may have made this decision that, hey, you know, we need these weapons because people voted for us, I don’t think that that is a particularly persuasive answer to me.

So, yeah, I’ve got a lot of problems with the idea of Ukraine so desperately needing cluster munitions as a bridge weapon from now, when they’ve run out of artillery shells, until the point when NATO and others are able to provide them. Because, one, these weapons are banned by a lot of states for a reason, alright? They should not be used because of their foreseeable civilian harm. OK, that’s the first thing.  And then, two, the idea that you have continued potential for civilian harm for years, if not decades. And, last, it’s very difficult to use these weapons in a lawful manner.

According to international law, you’ve got a couple of principles here. You have distinction and you have proportionality. Distinction is the idea that any attack, any weapon that is going to be used, you have to be able to distinguish between a military object that you’re targeting and civilians that may be in the area, and that’s just not possible with cluster bombs. Because cluster bombs cover such a wide area, and they’re not individually targetable. So, distinction goes right out the window.

And then, proportionality, this idea that the military gain in any attack cannot be outweighed by the civilian harm, and I see that as being very, very difficult with cluster munitions. Because, one, at the time of use, you have so much chance for widespread civilian harm. But even if we believe that the Ukrainians are going to keep their word and only use cluster munitions in areas out in the countryside where there are no civilians, I think the problem is that, eventually, you’re going to have such a large minefield throughout the country. People are going to return home.

I was in Lebanon in 2006. I was at people’s homes. The government was not able to keep people in the north as soon as the ceasefire went into effect. People flowed down into the south in Lebanon immediately. They went to their homes and they were blown up by cluster bombs that were sitting there in their yards.

JS: You know, Marc, I’ve debated Max Boot on CNN before, and I’ve argued with him, he actually blocked me on Twitter. Yes, he’s a Never-Trumper, and I’m not going to get into an ad hominem thing at all, because he’s not here to defend himself, but I’ll just point out, he’s taken this line on many conflicts before, and I find it very, very problematic. Including, you know, he’s a ride or die Bush/Cheney guy. And this was also the argument he was making about the Iraq war. “Oh, this is part of a democratic process.”

It’s as though — and it’s not just Max Boot, this is a lot of people — it’s as though, well, whatever Zelensky says, or whatever Ukraine says, That we as Americans somehow have an obligation to just give them everything they ask for. Completely false. We have a moral obligation, not to mention civic duty, to hold our own government accountable. I also think that what Russia is doing is utterly criminal, I’m entirely opposed to their invasion. And, at the same time, I’m deeply disturbed by some of the domestic policies of Zelensky, and I’m extraordinarily disturbed by some of the U.S. position toward Ukraine.

One of the things I’ve been following very closely — and I know this is an issue that you pay a lot of attention to, also, Marc — is Ukraine has been agitating to get Tier 1 drones from the United States, the Gray Eagle and others. And I think that it’s our job as responsible citizens to pay attention. What weapon systems is our government willing to transfer to other governments? What checks are in place to ensure that they aren’t going to escalate situations to a point where we have nuclear war? Or they’re not going to result in decades down the line of maiming of women and children and civilians, other civilians, from cluster munitions?

I find that argument — it seems like you do, too — really, really problematic. The notion that, well, if Ukraine says that they need it, then it’s our obligation, and that the Ukrainians are going to be paying the price for it down the line. I think it strips us of our moral agency, particularly as Americans, to say to our government, oh, hold on a second here, is this morally the right thing for us to do? It’s not just about strategy. It’s also about what is right in this world, and I think all of us have a moral obligation to pay attention to what our government is doing.

MG: Absolutely. We have a responsibility as citizens to ensure that there are limits to what our government does. And we haven’t given the Ukrainians everything, right? You know, they asked for no-fly zones early in this conflict, and the United States said no. So, we have said no. The problem is that we’re saying, yes, now, and I think that that is absolutely the wrong thing to do.

MH: Marc, I wanted to ask, given what you articulated, in terms of the military ineffectiveness of these munitions, and also, of course, the civilian harm that they’ve caused in many conflicts, why has their use continued to be relatively persistent over so many years? I think that the actual origins of cluster bombs, if I’m right, goes back somewhere near World War II. And despite the U.S. and some other countries moving away from their use or, in some cases, signing the convention against them, there are still countries that we see — in Ukraine today, but also Saudi Arabia recently attempting to use cluster munitions — what is the continued attraction of them, if they’re not that useful on the battlefield?

MG: Yeah. So, cluster bombs are cheap and easy, and militaries like cheap and easy, right? You can get a lot of bang for your buck. And so, that idea of economy of force, sending one bomb over and having an outsized effect by dropping hundreds of smaller bombs onto an area is something that’s very appealing to militaries. And, unfortunately, that thing that appeals to them has a human cost and a foreseeable civilian harm.

And we see continued use by a lot of just problematic actors, right? When we look at the countries that have been employing cluster bombs, we’re talking about those that are continuing to engage in conduct that is potentially unlawful, right? We’re looking at Israel in Lebanon in ‘06, we’re looking at the Russians in multiple conflicts, in Georgia and throughout the conflict in Syria. We’re looking at Saudi Arabia in their conflict in Yemen. And I don’t think that’s a group that the United States wants to, or should be, proud to be lumped into in every case, particularly with the widespread Russian use.

And, because we really haven’t used these since 2003 — yes, obviously the incident in Yemen, the use by the U.S., they’re highly problematic — but, that single use aside, 20 years of no use by the United States… When the U.S. has been involved in 20 years of war in Iraq, in Afghanistan, fighting against the Taliban, fighting against ISIS, if these weapons are so good, why haven’t we used them in those conflicts? And so, I’m deeply troubled by this.

I was part of the group that worked for the cluster bomb ban. A lot of the research I did on the ground in Iraq, in Lebanon, in Georgia, and elsewhere, went on to inform the decision by states to eventually outlaw these munitions when the treaty was put forth in 2007, and then signed in 2008 in Oslo. And, unfortunately, we then saw immediate use in 2008 in the war in Georgia, and then we’ve seen continued use by some problematic states. And this is not the kind of thing that I want my country to be involved in anymore.

JS: I want to follow up with you on something I was talking about earlier, about drones. And — as you’re certainly well aware, Marc, you follow this as close as anyone — Russia sort of fell behind many other countries in the production of its own, for lack of a better term, let’s say, Tier 1 drones. China is making very, very advanced drones; they’re actively trying to compete with the U.S. manufacturers of the top tier drones that the U.S. Military and the CIA uses. But what we’ve seen Russia doing is using some combination of Turkish and Iranian drones.

And the Iranian drones in particular, the Shahed Drones that Russia has been using, they’re using them in these kind of swarm or cluster attacks, where you have so-called “kamikaze drones” that have a single munition on them, and it’s just as it sounds, that the drones are meant to actually detonate upon striking a target. And we’ve seen, multiple times, Russia using a whole fleet of them, basically, to then descend on buildings. They’ve been used in civilian attacks, they’ve been used in military attacks.

Ukraine does have some robust larger drones, they’re also starting to use smaller drones but give us a sense of where you see all of this going. Because, I think, you, and I, and others, who were really involved with trying to raise warning bells against the proliferation of these remotely piloted aircraft and other vehicles that could be used to strike without having boots on the ground, etc., that we’re really seeing the future is in front of us right now with drone warfare, and much smaller deadly drones. Talk, talk a bit about that.

MG: Yeah. So, I look at the conflict in Ukraine right now, and I see this very much akin to the development of aircraft in warfare, and we’re right now in World War I. When aircraft first started to fly in the First World War, they would fly over an area, and you would see pilots dropping a hand grenade out of the aircraft onto forces on the ground. And that eventually ramped up to airplanes carrying bombs and dropping them onto cities in the First World War.

We then moved to the Second World War, where you had massive strategic bombing campaigns against cities; you know, the Germans, obviously, hitting London throughout the conflict, the U.S. and its allies hitting Japan and Germany. And that just continued to advance, and now we just have this expectation of aircraft being used in combat and dropping weapons.

I see very much the same thing with drones, where we see that we’re now in this point where Ukraine is using these kind of very small, civilian — kind of — hobbyist drones dropping bombs onto tanks, one by one, the Russians are using these kamikaze drones. But we’re moving to a point now where I think that drones are going to become such a pervasive part of warfare, such an accepted — which is of grave concern to me — such an accepted thing that, at some point, we’re probably going to see drones moved to a point where not just the United States is conducting drone strikes out in out-of-area conflicts, where we see drones flown and drop munitions in conflicts.

What’s going to happen when we see China, for example, employ drones in some country, you know? How are we going to react to that, when we have been doing that and have set the standard? So, yeah, I see this very much as the very beginning of acceptable drone warfare, and it’s only going to increase. The investment by militaries is exploding. And it’s not just aerial drones, right?

On the 16th of July, we saw the Ukrainians use drones from the sea — so, basically, ship drones — to attack the Kerch Bridge. We’re also going to be seeing drones on the ground. We already have, in the U.S. military, on armored vehicles, where the machine guns, turrets, are remotely operated by the person inside. We’re soon going to be seeing remotely operated tanks and armored vehicles on the battlefield. So, drones are not going to be limited just to the air.

It’s very much almost like a Star Trek episode, where we see, at some point, you’re going to have a computer controlling the Enterprise, right? Flying through space, blowing away things. And I think we should all be very concerned and, as citizens, we have a responsibility to understand what our government is doing, and to keep them in check.

MH: Marc, you’ve spent a lot of time in war zones where weapons like this have been used, and documenting the aftermath when the guns go silent about what takes place, and how these bombs can cause lasting harm or lasting impediment to people being able to live normal lives in regions they’re used.

There was a Human Rights Watch report about previous use of cluster munitions in Ukraine in Russian-occupied regions which were fired by the Ukrainian military, and resulted in killing of some Ukrainian civilians. And, likewise, Russian use of cluster munitions in Ukraine, and how they’ve impacted civilians very, very grievously.

Years down the line, when the conflict ends, what are some of the dangers, and some of the lasting effects that we could expect to see Ukrainian civilians facing, even when the actual conflict taking place today comes to an end?

MG: There is no doubt in my mind that Ukrainian civilians are going to be killed for decades by the unexploded cluster bombs that are going to be laying on the ground in different areas of Ukraine. Absolutely no doubt. We just have to look at history, and how it’s happened in other countries, right?

When you look at the number of people in Laos and Cambodia that are still being killed today, in 2023, from cluster bombs dropped during the Vietnam War, I think that should give us all pause. And we should question any use of cluster bombs, today and in the future, and understand this is why 123 nations joined together and agreed to outlaw these weapons. This is why over two-thirds of NATO has agreed to outlaw these weapons.

We’re looking at massive fields of cluster bombs in Iraq, still today, from the American use during the first Gulf War in 1991, when we dropped 13 million. A shocking number of weapons on the ground.

People say to me, hey, Marc, why shouldn’t we transfer these weapons to the Ukrainians, right? Look, the Russians have used them there, yes. The Ukrainians have used a small number of legacy bombs that they had, and some that they purchased from Turkey. But the reality is, the country is already contaminated, and my response is, we don’t have to contribute to that contamination. You’re talking about adding millions of additional cluster bombs on the ground. Millions of these de facto landmines that, one, the military can come into contact with, right? The Ukrainian army could die. But, two, civilians, Ukrainian civilians are going to go, they’re going to walk home, their kids are going to pick them up, they’re not going to know what it is, and they’re going to be killed.

And this is going to happen for decades, this is something that we know will happen for decades. And so, why should the United States contribute to that contamination, and create an even larger, not only civilian, but also ecological harm? I don’t think that people consider the ecological harm as well.

You’ve got farms that are not going to be able to be used, you’ve got water that’s going to get contaminated. There’s just a huge number of concerns for the use of this specific weapon, and I think this was a huge mistake by the Biden administration, and unfortunate that the president would make this decision,

JS: Echoing some of what you’re saying, we’ve heard some Democrats and some Republicans also on Capitol Hill, raising a ruckus about this very issue, albeit from their own perspectives, but there is pending legislation, amendments to the National Defense Authorization Act.

One of the amendments was introduced by Representative Sarah Jacobs, a Democrat from California, and Ilhan Omar, also a Democrat, but from Minnesota. And, in her statement defending her amendment and asking her colleagues to sign on to it, Representative Omar said, quote: “If the U.S. is going to be a leader on international human rights, we must not participate in human rights abuses. We can support the people of Ukraine and their freedom struggle while also opposing violations of international law.”

Perhaps most notable about this is that there’s been very, very little opposition to any of the Biden administration’s policies on Ukraine from Democrats. Much of it has come from the Freedom Caucus Republicans.

Marc, talk about the amendments that are being proposed right now. Not just Jacobs and Ilhan Omar, but also from the Republicans, and what’s at the center of them.

MG: Sure. So, I have to give just huge kudos to Sarah Jacobs and Ilhan Omar for their leadership in holding the Biden administration to account, and really doing the due diligence of a democratic society, and making sure that the wishes of the people are followed, and we do the right thing. That we are a moral society.

There were three amendments put forward in the National Defense Authorization Act this year on cluster munitions. One was from Representative Turner from Ohio, a Republican, and that amendment was to prohibit any funds for the demilitarization of cluster munitions unless there’s a replacement, and let me explain what that means.

So, every weapon — it’s not just cluster bombs — every weapon has a shelf life. And when that weapon meets the end of its shelf life, it has to be demilitarized, right? It has to be taken apart, recycled, and removed from the U.S. inventory. Same thing with cluster bombs. And his amendment was that, hey, we’re not going to do that, right? We’re going to keep cluster bombs well past their shelf life, well past the point where they can be safely used, well past the point where you’re going to have a 14 percent dud rate, and those dud rates are going to start to skyrocket, because he wanted to make sure that we have a replacement for the weapon.

And, unfortunately, his idea of having a replacement for the weapon is one that would have kept the munitions in perpetuity in the U.S. arsenal. Fortunately, though, his amendment didn’t go anywhere, and now looks to be dead.

Then we had Sarah Jacobs and Ilhan Omar, and theirs was, very simply, no transfer of cluster munitions, period. Just no transfer. Very simple legislation, it was a one-pager, and it spoke to the problems of the munitions, and that we would not transfer them to any country.

Unfortunately, it was getting an awful lot of support. At least, unfortunately, from the Democratic leadership perspective. I think that the Democratic leadership was very concerned that this was going to make it into the NDAA, there were about a hundred-plus, 140 congresspeople who were supporting this, and there was a real concern that this one might actually pass. The Senate was also very concerned with that.

And so, it was then decided, we’re going to take that and roll that into a different amendment. And this had, the Jacobs and Omar amendment initially had bipartisan support. You had some of the Freedom Caucus members like Gaetz supporting it as well, so it was bipartisan, and this was why it had such, there was such concern from the leadership, that President Biden was going to get a loss, right? That he was going to be told, no, you can’t do this. You want to send this bomb, but Congress is saying no.

And so, the leadership decided to poison-pill it. They took the amendment from Jacobs and Omar and rolled it into a separate amendment from Matt Gaetz, led by Marjorie Taylor Greene. And by giving it to Marjorie Taylor Greene, an individual who is seen as, I mean, forgive me, but among the most reprehensible members of the U.S. Congress, because of her just outright racist and highly problematic, anti-LGBTQ, etc., policies that she supports. And so, by giving it to Greene, and having her as the name on the amendment, that it would die. And they were right. And that amendment died, and it did not make it into the NDAA.

And so, it looks as if all of this is dead. In fact, we know that the cluster munitions, the initial transfer of cluster munitions has already happened. There were some tens of thousands of American M864s already forward deployed in Europe as part of American stockpiles. And so, those have already been transferred to Ukraine, and we’re now awaiting the further transfer of M864s from the United States. And, eventually, we’re going to see hundreds of thousands of shells provided to Ukrainians and used on Ukrainian soil.

JS: That whole story of how these bills rose and then died via Marjorie Taylor Greene, there was a really great deep dive done on our other podcast, Deconstructed, by our colleague Ryan Grim, and I encourage people to check that out as well, where they get into the entire tick tock of how that bill, how those amendments ended up rising, and then falling very quickly because of everything you just said about Marjorie Taylor Greene.

Marc Garlasco, we want to thank you so much for all of your work, and your insights on drones, on cluster bombs, on basically all matters of war. And thank you so much for being with us here on Intercepted.

MG: Hey, thanks for having me. I really appreciate you being concerned about this, and keeping it in the news, and I appreciate it.

MH: That was Marc Garlasco, the Military Advisor at PAX, a Dutch NGO where he works to protect civilians in armed conflict.

[Intercepted end-show theme music.]

JS: And that does it for this episode of Intercepted.

Intercepted is a production of The Intercept. José Olivares is the lead producer. Our supervising producer is Laura Flynn. Roger Hodge is editor-in-chief of The Intercept. Will Stanton mixed our show, and this episode was transcribed by Leonardo Faierman. Our theme music, as always, was composed by DJ Spooky.

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Thank you so much for joining us. Until next time, I’m Jeremy Scahill.

MH: And I’m Murtaza Hussain.

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