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Ukraine, which is now engaged in a counter-offensive against Russian forces, is set to receive a round of cluster bombs from the Biden administration in a drawdown of weapons that bypasses U.S. law.
Despite American law prohibiting the production, use, or transfer of cluster munitions with a failure rate of more than 1%, President Joe Biden is able to bypass the law through a rarely used provision of the Foreign Assistance Act, The Washington Post reported.
Cluster bombs, first developed and used during World War II, are banned by most countries in the world due to the view that they are inhumane because of high failure rates and unexploded fragments that can linger for years, according to the BBC.
Biden approved sending the controversial weapons to Ukraine after a “unanimous” recommendation from his national security team, according to National Security Advisor Jake Sullivan, who said on Friday it was a “difficult” decision made “in consultation with allies and partners and in consultation with members of Congress.”
The president is using the Foreign Assistance Act to approve the cluster munitions for Ukraine, which allows him to bypass arms export restrictions as long as he determines the move is vital to U.S. national security, The Washington Post reported. U.S. officials said the cluster bombs that will make their way to Ukraine have a failure rate of less than 3%.
The weapons pose a heightened risk to civilians as they explode in the air and release dozens of smaller submunitions, also called “bomblets,” over a wide area. The bombs, intended to destroy multiple targets at once, have been sought after by the Ukrainians as their ammunition runs low, according to The New York Times.
The U.S., Ukraine, and Russia did not join the 120 countries that banned the use of cluster bombs. Russia has been using the munitions in its war against Ukraine, according to the Pentagon, and the United Nations also believes Ukraine has already been using cluster bombs, although the country denies it.
According to the Associated Press, the transfer of cluster bombs to Ukraine will come out of Pentagon stocks in a fresh batch of military aid that also includes armored vehicles and more ammunition.
Human rights advocates are concerned that the Pentagon’s assessed 2.35% dud rate for the cluster bombs results from tests that do not adequately consider realistic conditions.
“It’s dismaying to see the long-established 1 percent unexploded ordnance standard for cluster munitions rolled back as this will result in more duds, which means an even greater threat to civilians, including de-miners,” Mary Wareham, advocacy director of the arms division of Human Rights Watch (HRW), told The Washington Post.
“The lack of transparency on how this number was reached is disappointing and seems unprecedented,” she added.
An HRW report released Thursday said that Ukraine “caused numerous deaths and serious injuries to civilians” while using cluster bombs in the city of Izyum and other locations last year. HRW also said that “Russian forces have extensively used cluster munitions in Ukraine, killing many civilians and causing other serious civilian harm.”
As the war rages on, the U.S. continues to fund Ukraine’s defensive efforts, sending tanks, weapons, and ammunition to the country as it seeks to push out Russian forces. Biden has insisted that the U.S. will support Ukraine for “as long as it takes.”