In my article in this publication on January 4, 2023, entitled Advancing Global Peace and Security, I comprehensively analysed the concept of just wars, inter alia. Importantly, I recommended that “rogue states and terrorists will need to be confronted via the invocation of just war principles where pragmatic diplomacy proves futile. Enticing rhetoric just won’t do. Advancing global peace demands robust security and effective international cooperation”. I take nothing away from that recommendation today.

Therefore, within the context of the Russian war of aggression against its western neighbour, Ukraine, on February 24, 2023, with reverberating socio-political global consequences like higher energy and food prices, the latter is entirely within its rights, legally, and morally; as a sovereign state, to defend itself, and citizens; by virtue of article 51 of the UN Charter 1945.

It is upon this premise that America, its North Atlantic Treaty Organisation (NATO) and western allies proactively support Ukraine in its prosecution of lawful resistance and a just war against the Russian aggressor. In turn, Russia, asserts the basis of its invasion as the “demilitarisation and denazification” of its Ukrainian neighbour a desperate aspiration to protect Russian-speaking citizens of Donetsk and Luhansk in eastern Ukraine.

According to Reuters, approximately 354,000 Russian and Ukrainian troops have either been killed or injured since the conflict began over 16 months ago. These grim statistics are reinforced by the Office of the United Nations High Commissioner for Human Rights (OHCHR), which recorded, between February 24, 2022, and June 18, 2023; 24, 862 civilian casualties in Ukraine; of which 9,083 (36.5%) were killed and 15,779 (63.5%) injured. Of these, 20,073 (80.7%) casualties were recorded in Ukrainian government territory, whilst 4,789 (19.3%) were recorded in Russian controlled territory.

Even so, these are conservative figures, because the OHCHR estimates that the definitive data is likely to be much higher, given fiery hostilities in contested locations like Lysychansk, Mariopol, Popsana and Sivierodontesk, amidst allegations of large -scale casualties. As at July 4, 2023, the United Nations High Commissioner for Refugees (UNHCR) established that 5,967,000 (94.24%) Ukrainian refugees had fled to Europe, whilst 364,000 (5.75%), sought sanctuary further afield.

Regarding Ukraine’s just war defence, significant military aid has poured into Ukraine, and continues to do so by America, that country’s largest military donor; United Kingdom, the second largest military donor; NATO and western allies. Since February 2022 for example, America has provided military assistance to Ukraine totalling $37 billion. Of this amount, $10.8 billion has so far been delivered pursuant to the Defence Department’s Ukraine Security Assistance Initiative (USAI) in the October 1, 2022 to September 30, 2023 fiscal year.

Plus, since 2014, America has, through the Defence and State Departments’ Global Security Fund, provided over $42 million in advisory services and equipment to further develop the tactical, operational and institutional capacities of Ukraine’s special operations forces, National Guard; conventional forces; non-commissioned officers and combat medical services. When Russia justifies its invasion of Ukraine upon the foundation of “demilitarisation”, is the fundamental point really against substantial American military aid, and by extension, intelligence, within Russia’s geopolitical orbit?

The United Kingdom is Ukraine’s second largest military donor. So far, £4.6 billion has been pledged of which £2.3 billion was delivered in 2022 and a public commitment to match that in 2023. Likewise, the European Union, under the auspices of the European Peace Facility Fund, has pledged €2 billion in military support to Ukraine. Supportive western countries and allies, offering and/or pledging military support to Ukraine include Albania, Australia, Azerbaijan, Cambodia and Colombia. Others are Colombia, Cyprus, Israel, Japan, Jordan, Morocco, and New Zealand among others.

Contextually, there are conflicting geostrategic dynamics at play in the Russian/Ukrainian war. For one, it stridently splits informed opinions and Russia, a nuclear super power, and veto-wielding UN Security Council member, asserts that Ukraine is within its geostrategic orbit upon which NATO cannot “trespass”. Second, several discrete intermediation efforts have been initiated by the United Nations Secretary General, Antonio Guterres. On February 23, 2023, the UN General Assembly called for an end to the war and for Russia’s immediate withdrawal from Ukraine; representatives of the African Union (Comoros, Congo-Brazzaville, Egypt Senegal, South Africa, Uganda and Zambia); and the Chinese; which, for various reasons, have been largely rebuffed by the warring parties.

Third, de facto, what’s at play, is a real proxy war between Russia and the America that’s being fought on Ukrainian territory. Fourth, the overriding interests of peace in the region appear to have been subsumed by vicious brinksmanship by the Russians and Americans. Fifth, the risks of a catastrophic nuclear war, are inching forward for each day, the war persists. Evidence for this was Russia repositioning tactical nuclear weapons to Belarus, its strong ally, in June 2023. That, in itself, is not a reason for Ukraine, and its allies, not to prosecute a just war against the Russian aggressor. But, at what point does reason and diplomatic realpolitik finally prevail; at what cost to human lives; the emanating refugee crisis, its impact on the public services of host nations and social cohesion?

In his magnum opus, Leadership, the centenarian American ex National Security Adviser and Secretary of State, Henry Kissinger presciently opined that “within human institutions – states, religions, armies, companies, schools – leadership is needed to help people reach from where they are to where they have never been and, sometimes, can scarcely imagine going. Without leadership, institutions drift, and nations court growing irrelevance and, ultimately, distance”.

Where then is the demonstrable leadership to find a lasting solution to the Russian/Ukrainian war? Yes, just wars, by the very definition, are legitimate fights against enemies, but for how long should they be prosecuted and at what cost, if the sordid harvest is the vile alliterative trinity of death, destruction, daily? On a balance of evidently contestable complexities on the extant facts, how, for example, does America, assuredly, re-affirm its moral authority as the leader of the free world by sending cluster bombs to Ukraine, in the eyes of reasonable people globally? To put it differently, how is peace secured in the Russian/Ukrainian war by the proliferation of cluster bombs by the actual gladiators and proxy warriors?

To be clear, cluster bombs or cluster munitions are weapons of mass destruction! They maim and kill people and destroy equipment. One key concern surrounding cluster bombs is that they release “mini-bombs” or “bomblets” over vast precincts and they may not explode during conflict. The residual risk and unpredictability of unexploded cluster munitions, is that they pose serious enduring threats to civilians and inadvertent foci, long after skirmishes and wars have ended. And, they are expensive to track and remove, similar to covert landmines. The late Princess Diana (1961-1997), in a strikingly poignant humanitarian endeavour, on January 15, 1997, walked through an active landmine field in Huambo, Angola, to raise global awareness of the extreme danger posed by these munitions.

Cluster bombs have a failure or “dud” rate of 2% to over 40%. The higher the failure rate, the higher the probability that the “bomblets” will not explode. Conversely, the lower the “dud” rate, the greater the probability of the “bomblets” exploding. Essentially therefore, cluster bombs are the very epitome of “scattergun” imprecision in munitions technology. Bad news!!

In sharper perspective, Cluster Munitions Monitor 2022, establishes that at least 23,082 cluster munitions casualties are confirmed around the world. Of that number, 18, 426 (79.82%) casualties emanated from unexploded “bomblets” and approximately 4,656 (20.18%) from conflict related attacks. These are conservative figures and the global estimates of casualties range from 56,500 to 100,000; with the majority of those civilians.
Little wonder, cluster bombs are banned under international law, pursuant to the Convention on Cluster Munitions (CCM) adopted in Dublin, Ireland on May 30, 2008, which entered into force on August 1, 2010. The CCM outlaws all use, production, transfer and stockpiling of cluster munitions. 123 sovereign states have joined the Convention. Some of these states -UK, France, Germany, Belgium, Bulgaria, Czech Republic, and Norway) are NATO members – all of whom are providing direct or indirect military support to Ukraine in its war against Russia.

Paradoxically, America, China, Russia and Ukraine are not parties to this supremely important international treaty. Inferentially, there is an evident strategic chasm between America and its European NATO allies who are jointly, albeit indirectly, prosecuting the Ukraine’s defence against Russia. Why the strategic chasm? Are humanitarian concerns less deserving than the retention and deployment of cluster munitions? Where is the morality and the enthronement of a rules-based legal orthodoxy if America, paradoxically, the leader of the free world and the bastion of liberty effects a policy, announced on July 7, 2023, to deploy cluster munitions to Ukraine? Yes, the geostrategic calculation of national interests are important, then again, how is that rationally counterbalanced against the safety of innocent civilians?

To conclude, these are tough policy questions, which defy simplistic answers and political naïveté. Nevertheless, the reasonable expectation is that informed and objective analysts, foreign policy experts, lawyers and scholars, will critically reflect on the arguments in this piece, with a view to informing a rethink of current American policy on cluster munitions to Ukraine. Defend Ukraine? Absolutely! Do so by deploying cluster munitions? No!

Consequently, cluster munitions will not only seriously imperil the prospects for global peace, they are unlawful under international law. Afterall, what’s to stop warlords in trouble spots around the world, from deploying cluster munitions on the premise, that if American can deploy them, they also can? Such arguments are non sequitur and based on sophistry surely, but do warlords ever concern themselves with the finer nuances of diplomacy and intellectual rigour?

So, what’s the prognosis for global peace and the rule of law?
Kees van der Pijl’s seminal reflections in The Discipline of Western Supremacy, affords interesting insights here: “The collapse of the Soviet Union and the New World Order pronounced by George H.W. Bush upon the victorious conclusion of the Gulf War of 1991, has turned United States militarism into such an ‘objectless disposition’”.

Ojumu is the Principal Partner at Balliol Myers LP, a firm of legal practitioners and strategy consultants in Lagos, Nigeria.