"It would be." - “If that were true, it would potentially be a war crime.”

Then-White House Press Secretary, Jen Psaki, said in a briefing when asked about reports of Russia's use of cluster bombs just five days into the war in February 2022.

But today things have changed.

"This is a war relating to munitions. And they’re running out of that ammunition, and we’re low on it," US President Joe Biden told CNN in an interview last Saturday.

"And so, what I finally did, I took the recommendation of the Defense Department to - not permanently - but to allow for this transition period, while we get more 155 weapons, these shells, for the Ukrainians," he added.

During a press briefing last week, the Under Secretary of Defense for Policy Colin Kahl made a different argument:

"First, Russia has been using cluster munitions indiscriminately since the start of this war in order to attack Ukraine.  By contrast, Ukraine is seeking DPICM [dual-purpose improved conventional munition] rounds in order to defend its own sovereign territory." 

The White House's National Security Council spokesman John Kirby later acknowledged the risk to civilians but justified the decision by reasoning that Russia is doing it as well.

“We can all agree that more civilians have been and will continue to be killed by Russian forces whether it’s cluster munitions drones, missile attacks, or just frontal assaults, then will likely be hurt by the use of these cluster munitions fired at Russian positions inside Ukrainian territory,” Kirby said in a briefing.

“While Russia is using them in Ukraine in an aggressive war on another country and indiscriminately killing civilians, the Ukrainians will be using these cluster munitions," but they will be "using to defend their own territory hitting Russian positions,” Kirby said in a separate interview with an American broadcaster.

Jake Sullivan, Biden's National Security Adviser, reiterated the rationale.

"We recognize that cluster munitions create a risk of civilian harm from unexploded ordnance," Sullivan told reporters.

"But there is also a massive risk of civilian harm if Russian troops and tanks roll over Ukrainian positions and take more Ukrainian territory and subjugate more Ukrainian civilians because Ukraine does not have enough artillery."

The new pro-war psyops campaign that Biden's administration launched to justify supporting the "democratic" government in Kiev to using undemocratic methods to achieve Western goals has raised many concerns: what is the next red line the United States will cross to prolong the war, and to what extent?

Washington has made its reasoning clear: if "evil" Russia is doing it, so can "democratic" Ukraine, and the United States is all for it, as long as it takes, regardless of the dangers it will be subjecting the Ukrainian citizens after their lands are "liberated" as per US' claimed goal.

Cluster bombs, bomblets, and launching mechanism

The Cluster bombs in question are 155mm projectiles with a range of almost 30km when fired, that hold up to hundreds of explosive submunitions, also known as bomblets or submunition, which are released over a wide targeted area and detonate on ground impact.

The bombs can be deployed by, warships, or aircraft or fired by ground-based launching platforms, including artillery systems, such as Howitzers, while bomblets are designed to indiscriminately take out multiple targets, including military vehicles and individuals.

The rate of bomblets that fail to explode on contact, and continue to be a threat to civilians for long years similar to landmines, is also known as a dud rate.

False dud rates 

While the US claims that the bomblets have a low failure rate of 2.35 percent, the Department of Defense deemed the test data “classified” and did not make the live-test results public, the last of which was carried out in 2020.

The new M864 shells have an increased range compared to previous versions, they 72 of the same type of grenades that were plagued by a high rate of bomblets that fail to explode, while the US deems any rate over 1 percent to be "unacceptable" to use.

In 2009, the United States ratified a law banning the export of cluster bombs at rates over the acceptable threshold.

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But Kahl insisted that "the president does have the authority to waive that requirement on national security grounds, and that's what he has done in this instance."

Responding to a question about the dud rate recorded by test trials carried out by the US military, Kahl said that the data are "classified," but expressed "high confidence" in the publicly claimed numbers.

"On the test itself, I think at this juncture, because the tests themselves are classified, we won't be releasing them," the senior defense official said, adding, "Presently, those tests -- those reports are classified."

"I can say this: We have high confidence in those numbers based on five consecutive tests.  I also have high confidence that they will be far more efficient and discriminant than the cluster munitions that the Russians are using, and I think the Ukrainian assurances on top of that give me added confidence in that."

But public and expert reports have conveyed skepticism about the numbers the Biden administration provided.

The version Washington is providing is of class dual-purpose improved conventional munition (DPICM) that was phased out by the US military in 2016.

Estimates from Human Rights Watch, based on Defense Department reports, suggest that military inventories still contain as many as 4.7 million cluster shells, rockets, missiles, and bombs, comprising over 500 million submunitions or bomblets that have been placed in storage units for many years.

A 2022 report from the nonpartisan Congressional Research Service concluded that, while producers of the cluster bombs claimed a dud rate of just 2-5 percent, on-field experts involved in bomb diffusing "have frequently reported failure rates of 10% to 30%."

According to Pentagon officials, the shells being sent to Ukraine are an upgraded variant of those used in Operation Desert Storm in 1991. However, the upgrades in question do not imply better dud rates.

The cluster munitions in question hold outdated bomblets with a documented failure rate of 14 percent or higher. Meanwhile, explosives experts suggested that based on live-combat uses, these numbers could reach up to 30 percent.

Also criticizing Washington's claims, the International Committee of the Red Cross ICRC on its part confirmed based on data records that the submunitions dud rate is anywhere between 10-40 percent.

It's not like they are bombing the Middle East

The United States has a solid record of using cluster bombs for decades in numerous wars it waged across different continents, most of which still suffer from the unexploded remains to this day.

The US attacks using cluster munitions included Southeast Asia in the 1960s-70s, the Persian Gulf War in 1991, the former Yugoslavia in 1999, Afghanistan in 2001-2002, West Asia's Iraq in 2003, and Yemen in 2009.

According to the International Committee of the Red Cross (ICRC), during a US military attack on Laos between 1963 and 1974, over 270 million cluster submunitions were dropped on the country, while 9 to 27 million bomblets did not explode.

Almost 50 years later, Laos records just under 50 new casualties annually from unexploded cluster munitions, down from 310 in 2008, while 60 percent of the incidents result in death, around 40 percent of which are children.

However, the US argument to reassure the public that Ukraine will utilize the mass-targeting weapon safely helps provide an understanding of the US's historical use of cluster bombs.

"Ukraine, the democratically elected government of Ukraine, has every incentive to minimize risk to civilians because it’s their citizens. It’s Ukrainians who they are trying to protect and defend," Sullivan said.

"This is not Ukraine taking these and going and using them in the Middle East or Southeast Asia or some faraway land. They're using them on their territory to defend their territory."

It is self-explanatory how his statement dissects the US foreign policy and world vision.

Bomblets and terrain

A senior defense official confirmed last week that M864 shells will be sent to Ukraine. The official admitted that environmental factors would impact the performance of the shells but asserted the Defense Department's view that terrain issues would not cause a substantial rise in the dud rate.

Despite Washington claiming that it's supplying Kiev with cluster bombs to assist it in recapturing land now controlled by Russian forces, and given the relatively small distance between the front lines and the areas Ukraine wants to take over, the use of these munitions will become a devastating problem later as bomblets that fail to explode on impact will become landmines that endanger civilians after the war is concluded.

Another problem that emerges is that such munitions will be fired by the thousands by artillery tubes on a large area encompassed by Ukraine's counteroffensive, so mapping the targeted terrain would prove to be an almost impossible feat, despite Washinton claiming that such efforts will go in parallel with the usage of such bombs.

The Ukrainian terrain, and where most of the battles are taking place specifically, are mud-filled landscapes most time of the year, agricultural land, and sand roads. And as the winter closes by, while Ukraine is known for its heavy snow, the dud rate of the bomblets (assuming the US claims are true) will increase exponentially, and according to experts, the failure rate could grow to over 50 percent.

Concerns have been raised by critics regarding the military's dud-rate testing procedures, specifically questioning whether the tests were conducted under optimal conditions - in a lab or against the sold ground - or if they encompassed various weather and terrain scenarios that could impact the munition's performance.

A retired army colonel who is an expert in bomb disposal said that the grenades released by the type of cluster munitions provided to Ukraine are designed to explode when impacting a solid target such as armored vehicles and bunkers.

“Those fuzes rely on impact and if you land in something soft, you may not get the shock you need,” Allan Vosburgh said.

"We will not leave Ukraine defenseless at any point in this conflict, period," Sullivan said after announcing Washington's decision.

Such prolongation of the war does not only mean more human death and suffering but also that the reality for the civilian inhabitants of the targeted areas will be harsh and extremely risky. Such unexploded submunition will most definitely have long-lasting effects and a never-ending death list for the coming decades.