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In recent days, there have been worrying

0:21

and hotly debated reports that the Biden

0:24

administration will send US stockpiles of

0:26

cluster bombs to Ukraine. Why?

0:28

Well, it's argued that they are essential in bridging

0:31

the staggering shortfalls of munitions the

0:33

Ukrainians face in their fight against

0:35

Russia. There's no choice, it's argued.

0:38

Without them, the Ukrainians may need to fall back,

0:41

opening the door to increased Russian war crimes

0:43

in previously liberated regions. Others

0:46

argue that there must be another option.

0:48

The use of cluster bombs is a dark and

0:51

dangerous road to go down, one that

0:53

marks a worrying descent of Western moral

0:55

standards to that of the levels of the Russian

0:57

military, who already use cluster bombs

1:00

in the conflict. I'm your host, James

1:02

Patton Rogers, this is Warfare, and with

1:04

the laws of war and Russian war crimes in

1:06

mind, I've invited Honor Hathaway

1:09

back onto the podcast. Honor is

1:11

professor of international law at Yale Law

1:13

School, and she has been a member of the Advisory

1:15

Committee on International Law for the US Department

1:17

of State since 2005. She

1:21

was previously special counsel to the General Counsel

1:23

at the US Department of Defense. And

1:26

it's with Honor's expertise and experience

1:28

that we can take a deep dive into the broader

1:30

claims about Russian war crimes, including

1:33

the deliberate targeting of civilians,

1:35

and we can discuss whether

1:36

or not cluster bombs are the right route

1:39

to go down to hold back the Russian invasion.

1:42

Unsurprisingly, given the nature of the topic being

1:44

discussed, this episode contains content

1:46

that some listeners may find upsetting.

1:48

But as I always say, this is an important

1:50

topic, one we're fortunate enough to have Honor

1:53

with us to discuss.

1:57

Hi Honor, welcome back to Warfare.

1:59

You were last with us in September,

2:02

I think, and it was a time when the world was

2:04

still trying to come to terms, and arguably

2:07

still is, with what happened in

2:09

Butchia on the outskirts of Kiev,

2:11

where it's now estimated that 461

2:14

civilians were killed and many were tortured

2:17

by the Russian military. Now

2:19

it's over a year since those Russian

2:22

war crimes took place, and I thought it was important

2:24

that we had an update on the extent

2:26

to which Russia had been accused of mass

2:28

killings, atrocities, and broader

2:31

breaches of international law

2:33

within the ongoing conflict.

2:36

But if it's okay with you, perhaps we could step back

2:38

to Butchia, and you could give us an update

2:41

on what's been going on and perhaps what

2:43

we didn't know had happened since last September

2:45

when we last spoke.

2:46

Yeah, well thank you again for having me. It's

2:49

always a pleasure to talk with you. What

2:52

we've learned both in Butchia

2:55

and elsewhere is just how systematic

2:57

the war crimes were. This was

3:00

not just as some were

3:02

hypothesizing early on, you know, a matter

3:04

of a few Russian troops kind of

3:06

gone astray, you know, a few

3:08

bad apples who were behaving badly.

3:11

This seems to have been really a systematic

3:14

and intentional effort

3:16

to really terrorize the

3:18

civilian population. And

3:20

we're seeing that as the evidence

3:22

has been collected and there's been real

3:25

efforts to document this, not just for,

3:27

you know, news purposes, obviously, but

3:30

because there are real efforts underway

3:32

to hold people to account for the

3:35

war crimes that they've committed in the course of this

3:37

war. So we're just beginning to

3:39

get that information out, frankly. You know,

3:42

there's so many people in there gathering that information

3:44

and gathering that data. Some of it's coming out

3:46

in the news,

3:46

but a lot of it's going to take some time to come out

3:49

in the course of the trials. But for now,

3:51

what we know is it was much more

3:53

extensive, it appears to have been much more intentional

3:56

and really it's probably one of the more brutal

3:59

wars that we've had.

3:59

we've seen in modern memory, certainly

4:02

in Europe. And, you know, it's really,

4:04

I think, a reminder of just how terrible this

4:07

war has been and unfortunately continues

4:09

to be.

4:09

Will Bucher go down in history as

4:12

being seen as an organized, deliberate,

4:14

pre-planned cleansing operation?

4:17

Is this what we're getting out of the information

4:19

and the evidence from the trial? Because I

4:21

remember just a few months ago we were hearing from

4:24

German intelligence who had been intercepting

4:26

some of the radio communications that that's

4:28

exactly what the Russian soldiers had been told

4:30

to run. And not only that, that they had kill lists,

4:33

that they were gathering up certain prominent people

4:36

to slaughter them, to murder them.

4:37

And that's true. And that's been true, I mean,

4:39

that's at least the reporting that we're hearing. And that's been

4:42

true throughout the areas

4:44

that Russia occupied. Many

4:46

times it was leaders, people

4:48

who had been

4:49

local officials

4:52

who were deliberately targeted, journalists

4:55

who were deliberately targeted, people who

4:57

were thought of as potentially

4:59

the sorts of people who would be likely to lead

5:02

a resistance or encourage resistance.

5:04

Those folks were killed not only were

5:06

they killed, but in many cases their entire families.

5:09

I mean, really horrific news that

5:11

we've seen in Bucher in particular, but

5:13

it's not limited unfortunately to Bucher.

5:15

We've seen this kind of practice through

5:18

many of the areas that the Russian

5:19

force has occupied. So what

5:22

you're saying is this is a cleansing operation that

5:24

took place all around the towns that

5:26

were occupied around Kiev in those early months

5:29

of the war. Are we to expect them that

5:31

this is exactly what is continuing to happen

5:33

within Russian held territory today?

5:35

Yeah, I mean, I think that's a fair guess. I mean, obviously

5:37

we don't have great information about what exactly

5:40

is happening in these occupied areas.

5:43

Many of those who opposed Russian occupation

5:45

fled, many of those

5:47

who opposed it, who stayed have

5:49

been killed. So, I don't

5:52

think the rate of killing is continuing at the same pace,

5:54

but one can be assured that

5:56

there's no dissent being brooked in

5:59

those areas. And there's ongoing

6:01

fighting happening, of course. You know,

6:03

there's now an effort to retake this

6:05

territory, which is putting

6:07

civilians once again into the line of fire.

6:10

And so the situation, I think, is pretty horrific

6:13

on the ground for people who are just trying

6:15

to live their lives in these areas that now become

6:18

the middle of a geopolitical, major geopolitical

6:20

conflict.

6:21

Well, like you say, as the Ukraine counteroffensive

6:24

moves forward and makes

6:26

gains potentially, although it's an

6:28

incredibly slow move forward at this

6:30

moment in time in July as we're

6:33

recording. But there may be more reports

6:35

of war crimes coming through. So could

6:37

you explain to us that the process through which Ukraine

6:40

is going to hold those perpetrating these

6:42

crimes to account, do we have certain

6:45

prisoners of war, for example, that are being put

6:47

on trial at the moment? Where is Ukraine gathering

6:49

its evidence from and who is it holding

6:51

to account?

6:52

Well, so there's many routes towards

6:55

accountability that are beginning to get

6:57

underway. So the first is

7:00

that Ukrainian courts themselves are

7:02

beginning already to hold trials

7:05

of war crimes. The prosecutor

7:07

general for Ukraine has, from

7:09

the very beginning, really early on,

7:12

from the first days of the war, begun collecting

7:14

evidence and begun engaging

7:17

in the process of preparing to prosecute

7:20

these war crimes and has thousands

7:22

of open cases. And

7:24

that is really where the bulk of the

7:26

prosecutions are likely to take place, partially

7:29

because Ukrainian courts have

7:31

already been engaged. They have clear jurisdiction

7:34

over crimes committed on Ukrainian territory.

7:37

Many of these crimes are sort of, are

7:39

horrific, but low level, you know, they're ordinary

7:41

soldiers who've committed these war crimes and when they're able

7:44

to identify them, they will hold

7:46

them to account. You've got the prisoners of

7:48

war who are actually being held who can be tried

7:50

and the very first case, you know, many of us saw

7:53

this sort of young man who had

7:55

been conscripted into the war, who was held

7:57

to account for a war crime that he had committed to shots.

7:59

a man who was just riding his bicycle. You

8:02

now also see, and this is somewhat

8:05

more controversial, but the Ukrainian

8:07

courts can hold trials in absentia.

8:10

So they are also trying

8:12

to use some of the, both the

8:14

evidence that's collected and then images

8:17

of soldiers, many of whom didn't

8:20

make any effort to hide their identity.

8:22

They are using facial recognition to try and identify

8:25

these people, many of them caught on tape in the

8:27

course of committing their crimes and

8:29

then proceed with trials in absentia.

8:32

So holding them to account, though they

8:34

are not likely to actually end up in jail

8:37

unless they are at some point caught

8:39

in Ukraine. So if they continue to fight

8:40

in Ukraine and are eventually taken prisoner

8:43

and the identity discovered they

8:45

could be put in jail.

8:47

So that's one set of cases

8:49

that are underway. That is in the Ukrainian courts, those

8:51

are already happening. They're already convictions, they're

8:53

already people being put in jail, and that is going to be continuing

8:55

for a long time. Separate

8:57

from that, there's the International

9:00

Criminal Court. And the International Criminal

9:02

Court has jurisdiction over

9:04

crimes against humanity and genocide committed

9:07

in Ukraine because Ukraine agreed to the

9:10

jurisdiction of the court back in 2014, even

9:12

though Ukraine is not a party

9:15

to the court, which is a kind of fine distinction,

9:17

but they haven't submitted to the jurisdiction

9:20

of the court as a party, although there's

9:22

a lot of pressure on them to actually join the

9:24

ICC that has agreed to ratify the

9:26

Rome statute that creates the ICC. But

9:29

nonetheless, these cases can go forward

9:31

because they basically said, look,

9:33

we accept the jurisdiction of the court over

9:36

events taking place in Ukraine beginning in 2014. And

9:39

so all the events that are happening are within the jurisdiction

9:41

of the court. Kreme Khan, the prosecutor

9:44

of the International Criminal Court, has opened

9:46

a full investigation into past and present

9:49

allegations of war crimes against humanity and genocide

9:51

committed in Ukraine. Those investigations

9:54

are taking place. There are lots of international

9:56

investigators involved in that, as well as in

9:58

the domestic prosecution.

9:59

And there's been an

10:02

indictment of Vladimir

10:04

Putin

10:05

for one set of war crimes,

10:07

and that is basically for the unlawful

10:09

deportation of children. We're expecting

10:11

a lot more prosecutions, a lot more

10:14

indictments to come, but that was sort

10:16

of the opening indictment. And that evidence,

10:19

some of it has been made public, and

10:21

we'll be seeing more of that as a trial

10:24

eventually gets underway, although that will

10:26

have to await—the actual trial would have to

10:29

await capturing Putin,

10:31

which at the moment seems a little far off, but

10:33

they can continue building the material,

10:36

putting together all the evidence, archiving

10:38

it, so

10:39

if and when a trial does go forward,

10:42

that will all be available.

10:43

You mentioned the kidnapping of children

10:46

there, Honor, and I was discussing

10:48

this with a colleague of mine, Evangia

10:51

Lukenshenko, the other week, and

10:53

she was saying to me that there are reports that once

10:55

these children have been kidnapped and

10:58

moved—and of course that is a very loaded term to

11:00

say, the Russians may say they're moving these children out

11:02

of harm's way as they move through and capture territories—but

11:05

they're then being put through a sort of

11:07

de-radicalization process or perhaps

11:10

an education process to educate them

11:12

in the right frame of

11:13

mind, the Russian frame of mind. Is

11:15

this in itself labeled as a

11:18

breach of international law as a crime?

11:19

Well, yes. I mean, there's—so

11:22

the unlawful deportation of the children

11:24

and unlawful transfer of the children from

11:26

occupied areas is what

11:29

it's featured

11:30

in the indictment. And

11:33

so the evidence that's put forward

11:35

in the indictment or that's cited

11:37

in the indictment is that

11:40

they knew that these children,

11:42

you know, had families who wanted

11:44

them, that they intentionally deported

11:47

them from Ukraine into

11:49

Russia, in many cases forcibly

11:52

adopting them into

11:54

Russian families and putting

11:56

them through these effectively, these re-education

11:58

programs to—

11:59

sort of bring them into

12:02

a frame of mind of sort of seeing

12:04

Russia as their new home

12:06

and sort of nationalist

12:08

indoctrination into Russia.

12:10

That

12:11

is part and parcel of this process

12:13

of unlawful detention and transfer

12:16

of the children. I think it will be part of the evidence

12:19

that's presented. It's

12:21

really what features primarily in the

12:23

criminal case is the removal

12:25

of these children, the separating them from their

12:27

families, the failure to give information

12:29

to their parents and other family members

12:32

about where they've been, the refusal to return

12:34

them to parents who clearly want them. And

12:36

you know, the process of this is really heart-rending.

12:38

I mean, they're telling these children that they're

12:40

not wanted, that their parents don't care about

12:43

them, that they've abandoned them, which in

12:45

many cases is not at all true. Some

12:47

of the children who have been moved are also orphans,

12:50

you know, who are being taken

12:52

and indoctrinated against

12:54

the families that they were once part of. So it's really

12:56

kind of terrible case.

12:58

And I think the ICC started

13:01

with this both because you kind of have

13:03

Putin on television basically

13:06

celebrating these acts, you know,

13:08

so they they've effectively admitted

13:10

on camera to doing the things that

13:12

they're charged with. And so that makes

13:14

it easier to prove. There's also satellite

13:16

evidence that shows a setting up of

13:18

these

13:19

camps and the moving of these children. So

13:22

there's pretty good documentation, but also

13:24

because this

13:25

is just so heart-rending, so

13:28

powerful, so terrible.

13:30

You know, the thought of children being

13:32

taken away from their families, torn away from their families,

13:36

told that their families don't care about

13:38

them. For children who've survived

13:40

and made it through these terrible

13:42

attacks and these wars and their own lives have

13:45

been at risk and whose family members are at risk, like

13:47

adding that on top of it all is just so terrible.

13:50

And I think really compelling. And I think

13:52

that's part of the reason that the prosecutor started

13:54

with this case. I think they also started with

13:56

this case because, again,

13:58

it's often hard. to connect

14:01

individual war crimes, you know, like the

14:03

war crimes that we see in Bukka,

14:06

we can see that Russian soldiers

14:08

committed these crimes. But

14:10

showing that Putin ordered

14:12

that is really hard.

14:14

And so connecting the dots between

14:17

the person at the top of the chain

14:19

and the terrible things that are happening

14:22

on the ground is often very

14:24

challenging for war crimes trials. This

14:27

is one where they had, again, you know, Putin on

14:29

basically on television celebrating

14:31

this, and it's clear that this is something that he ordered.

14:34

And I think they didn't want to start at the ICC

14:36

with these very low level soldiers.

14:38

They wanted to be clear they're going after the leadership,

14:41

they're going after those people who are most responsible,

14:44

and they're going after mid-level officials

14:46

as well, which should give them real pause

14:48

about the role that they want to play in

14:51

continuing to support

14:52

the war and certainly supporting

14:54

and being a part of these ongoing war crimes

14:56

that are taking place.

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16:21

And there's something quite insidious about

16:23

the kidnapping of children because

16:25

it is symbolic in the fact that it shows

16:28

it's a battle over the hearts and

16:30

the minds of the future of Ukraine. When you're

16:32

reeducating the youth, then you

16:35

see Russia trying to build a country,

16:37

a state of its own territory in

16:39

those parts of Ukraine, perhaps looking

16:42

for a future partition as a

16:44

resolution to the conflict. But

16:46

sadly, this is just a scratching of the surface

16:48

of some of the crimes that Russia has been accused

16:51

of. We saw that Ukraine's top prosecutor,

16:53

who was in the US, giving evidence

16:55

to US lawmakers in quite graphic

16:57

testimony, was saying that Russian forces

16:59

have been deliberately using rape, torture,

17:02

kidnapping, that some 20 torture

17:04

chambers were found and more than 1,000

17:06

survivors have reported an array

17:08

of abuses, including electric shocks,

17:11

waterboarding, being forced to strip

17:13

naked and threats of mutilation

17:16

and death. And so with all of this in mind,

17:18

as we focus on those crimes that Russia

17:20

are being accused of, to what extent

17:23

has Ukraine committed

17:25

war crimes that are even

17:28

anywhere near tantamount

17:28

to this? Yeah, it's a fair question.

17:31

So there is this question of, are

17:33

we all focusing just on what the

17:36

Russians have been doing and not paying attention

17:38

to Ukrainian war crimes?

17:40

So it's important to be clear

17:42

that Ukraine, though it is engaged

17:44

in a lawful war, it's defending itself against

17:47

an unlawful invasion, can

17:50

be held responsible for any war crimes

17:52

that it commits in the course of that lawful

17:54

self-defense. So a war

17:56

crime would constitute any violation

17:59

of international humanitarian... So

18:01

any of those acts that you described, if Ukraine was responsible

18:03

for doing those same things, would,

18:06

should and I believe will

18:08

be held to account for those

18:10

crimes. You know, there has been some

18:12

sporadic evidence of events

18:15

that are war crimes, mostly

18:18

cases where Russian soldiers

18:21

were killed,

18:22

where it wasn't clear that they

18:24

were still engaged in the fight. And I think

18:26

that's a very interesting point. law

18:28

when somebody is, or to combat, that is they are wounded

18:31

or they have surrendered. That means they're effectively

18:33

out of the fight. At that point,

18:36

they're no longer a lawful target. You can't kill

18:38

them if they've surrendered. You can't kill them if they're so

18:40

wounded that they can't engage

18:42

in the fight.

18:43

And there have been some reports that there

18:45

have been individual incidents where

18:48

Russian soldiers have been killed in those circumstances.

18:51

And my understanding is that those have been investigated.

18:54

And I think that the leadership of Ukraine

18:56

understands how essential

18:59

it is for them to maintain the moral high ground

19:01

here

19:02

and that they have

19:05

to be, they have to wage this war as

19:07

cleanly as humanly possible

19:09

because if

19:11

they don't, they lose that moral high

19:13

ground and the legal high ground. And that is

19:15

really in some ways their strongest

19:18

resource here. That is the reason

19:20

that they are holding their own in this fight and

19:22

may even win it is because they

19:25

have the legal and moral high ground. And if they

19:27

ever lose that, it threatens

19:30

the support that they're receiving internationally. It

19:32

threatens everything that they're trying to do. And

19:34

I think they know that they understand

19:36

that.

19:37

And so they are investigating

19:39

these crimes because they end their educating

19:41

their soldiers about how important it is to fight

19:44

the war as cleanly as possible.

19:46

Now, obviously, Ukraine is fighting on its own

19:48

soil. It's not engaging in some

19:50

of the horrific war crimes that Russia

19:52

is engaging in where, you know, it's bombing

19:55

hospitals. Russia is bombing apartment

19:58

buildings that bomb the people. Syria

20:00

and killed lots of civilians in the course of that.

20:02

I mean, there's zero evidence

20:05

that Ukraine is doing any of that. So

20:07

the reported incidents are much more limited. I

20:10

think it's also worth our engaging the question

20:12

that cluster munitions, which has been

20:14

pretty controversial lately. Certainly preempted

20:17

my next question. I mean, for me, this cluster munitions

20:19

debate makes me incredibly worried about

20:22

the notion that the war in Ukraine,

20:24

that Russia's offensive war against Ukraine

20:27

is eroding the broader standards that we've

20:30

held ourselves to in war as we see the

20:32

Biden administration looking to deploy

20:34

their own cluster munitions in conflict. Do we

20:36

run this risk that we're being dragged

20:38

down with this Russian disregard

20:40

for international law?

20:42

You know, there is that fear myself. I

20:45

have two minds about it. I've written in

20:47

the past about the

20:49

fact that cluster munitions are

20:51

regarded by many as in

20:53

and of themselves, no matter how they're used

20:56

as just effectively a war crime, because they're

20:58

indiscriminate. They're very hard

21:01

to sort of narrowly target

21:03

and to have them actually hit

21:05

the thing you want to hit. They tend to hit more

21:07

stuff around it. And then we've been

21:09

hearing a lot about the dud rate and the

21:11

fact that it leaves behind these unexploded ordinances.

21:15

And U.S. manufacturers have basically

21:17

stopped making these cluster munitions.

21:20

I was looking at one point into

21:21

whether there could be an alien tort statute

21:24

case against U.S. manufacturers

21:26

for using for supplying

21:29

cluster munitions to the Saudi led coalition

21:31

for its war in Yemen,

21:33

where cluster munitions have been used pretty

21:35

extensively by the Saudi led coalition and

21:38

caused really extraordinary and terrible

21:41

civilian deaths. And what I found was

21:43

that U.S. manufacturers basically stopped making

21:45

them once it sort of became clear that cluster

21:47

munitions were regarded by many as inherently

21:50

in

21:50

violation of IHL. Well, it's very

21:52

rare, isn't it, for the United States to be

21:55

party to any international controls

21:57

on weapons systems or any aspect of intelligence?

21:59

international law, although it may abide by its own

22:02

domestic rules that could be parallel to that.

22:04

And when it comes to the United States, we've seen that there

22:06

is a law, and correct me if I'm wrong, that the United

22:09

States cannot deploy cluster munitions that

22:11

have anything less than a 1% dud rate.

22:13

But what we're talking about here is weapons

22:15

that perhaps have a 2.8% dud

22:18

rate. And this, when it actually comes to the practicalities

22:21

of war fighting and someone we've had on the

22:23

podcast before, an old friend of mine, John

22:25

Ismay, who's a world expert on cluster munitions, says

22:27

that actually the reality is that when these

22:30

are deployed, they actually have

22:32

a 14% dud rate. And what we mean by that

22:34

is that 14% of these cluster munitions

22:36

will not go off when they hit the ground.

22:39

And that means that they are lingering indiscriminate

22:42

weapons that sit there either

22:44

to kill allied troops

22:47

that move through Ukrainian forces that move

22:49

over the battlefield. And of course, during the

22:51

first Gulf War, we had terrible rates

22:53

of US soldiers being killed by their own cluster

22:55

munitions. And then they linger on post

22:58

conflict. And we've seen this in Laos and in

23:00

Vietnam, of American butterfly

23:02

bomb cluster munitions that are still being

23:04

cleared up to this very day and still killing

23:07

and maiming civilians and children.

23:10

And so it just becomes incredibly difficult

23:12

to see how the US,

23:14

the allies and NATO can maintain

23:16

that moral high ground and abide by international

23:18

law by agreeing to deploy these weapons.

23:20

Yeah, you know, here's the I said

23:23

I was of two minds. So I said the first part,

23:25

you know, the argument against here's the

23:27

argument in favor, which I'm not sure I entirely

23:29

buy, but I at least see and this is the reason

23:32

that I have not written against this

23:34

and this is it.

23:35

From what I understand, basically Ukraine

23:37

is running out of ammunition, it's

23:39

running out of munitions and the

23:42

entire Western world has

23:44

been trying to up

23:47

its production of munitions, but

23:50

has not been able to keep up with the rate at

23:52

which Ukraine is using them.

23:55

We haven't had a war like this for a long time.

23:57

We had some stockpiles. Those have been

23:59

largely depleted, and

24:01

there's a certain amount that the U.S. Department

24:03

of Defense is going to insist on holding back for our

24:05

own use. We don't want to run through all of our ammunition

24:08

and then not be able to have any available

24:10

if something goes sideways elsewhere.

24:13

So basically, as I understand

24:15

the case for it, it's that

24:17

they're basically about to run out of

24:19

munitions. They need to be

24:21

able to continue to fight. They're in the

24:24

middle of this effort

24:25

at taking back some land,

24:28

and this is essentially a bridge

24:31

to when they are able to

24:33

sort of up the production and

24:35

get the more precision munitions

24:38

back on the battlefield. I

24:40

suspect as well, part of what's going on here is

24:42

the U.S. realizes it's basically

24:45

not going to be able to use these itself.

24:47

There's lots of internal debate about whether these can

24:49

actually be deployed, and so effectively these

24:52

are munitions that are sitting around on

24:54

a shelf

24:55

that's not clear the U.S. is ever going to be able to use itself

24:58

precisely for these reasons.

25:00

And add to this, this

25:02

is a case where Ukraine is using

25:05

these munitions to defend itself

25:07

against a fundamentally

25:09

illegal war where

25:11

Russia has itself been deploying these cluster

25:14

munitions with much higher dud

25:16

rates, as I understand it, something closer

25:18

to 20 or 30%. So

25:21

you've already got a ridiculous amount of unexploded

25:23

ordnance lying around, and there is

25:25

going to be a decades-long

25:29

process of clearing mines

25:32

and unexploded ordnance from

25:35

the territory of Ukraine that already has

25:37

to happen. This is going to

25:39

be an extraordinarily dangerous place for

25:41

a long time, and they're talking about

25:43

only using it in places that not using

25:46

cluster munitions in urban areas, but

25:48

only outside of urban areas to reduce

25:50

the likelihood that civilians are

25:52

going to be affected by them. And

25:55

they're keeping records of where they're going to be

25:57

deployed, where they're being used, so that they can

25:59

go in and clear the those areas afterwards

26:01

so that they know, you know, where basically

26:03

the hotspots are. So

26:06

if there was ever a case for the use of cluster

26:08

munitions, this may be it. And

26:10

I do think that the fall of Ukraine, the

26:12

failure of Ukraine to be able to defend itself

26:15

is a geopolitical catastrophe.

26:18

And in the face of that and the kinds

26:20

of precautions we're talking about taking, there's an argument

26:23

that if it really is the case that this

26:25

is the only way in which they can continue to defend themselves,

26:28

it makes sense. This is a very,

26:30

very

26:32

unfortunate situation and it's

26:34

a kind of least worst option.

26:37

And yet it's still a pretty bad option. So

26:39

that's, I think, where I end up on it. But I don't

26:42

think anybody's really celebrating

26:44

this move or happy that this is

26:46

kind of where we

26:46

are. I completely agree with that. And

26:49

I appreciate you breaking down both sides

26:51

of the argument there. I think one thing it highlights

26:53

to both of us, Honor, and to our listeners

26:55

around the world, is just how much warfare

26:57

has perhaps changed in 10

26:59

years since we were both talking about Obama's

27:02

drone program and the moral, ethical and

27:04

legal constraints of precision missiles

27:07

and then hellfire missiles and targeted

27:09

killings. We're now back to talking about

27:11

indiscriminate and disproportionate weapons and

27:14

the US supporting and supplying

27:16

the

27:16

use of cluster munitions in a war

27:18

that's raging in Europe.

27:20

And as you say yourself, you're investigating how

27:23

Saudi Arabia were potentially

27:26

breaching international law for using these weapons themselves

27:29

in Yemen. It shows to

27:32

perhaps reach a threshold in

27:34

this conflict, one where international

27:37

law is being degraded just due to the

27:39

fact of its scale, its length and

27:41

its brutality. And one of the things that

27:44

worries me as we look forward is we've known

27:46

that there have been shells running out for the

27:48

last year, year and a half. And the

27:50

troubling issue we have is that there hasn't been

27:53

that massive ramping up of industry to fill

27:55

that shell

27:56

gap. It makes you think back to the shell

27:58

scandal of the first.

27:59

World War, but you make these really important

28:02

points. If there aren't these weapons in place, then

28:04

what's the other option? Do you allow Russia

28:06

to make gains for the Ukrainian counter

28:09

offensive to fail? And then potentially

28:12

there is the very real risk of

28:14

Russian military forces moving back through

28:17

into these territories and committing those very

28:19

same war crimes, those cleansing

28:22

operations that we've spoken about at

28:24

the top of this podcast. And this shows

28:27

you the kind of dual problems of international

28:29

law, I guess.

28:29

In some ways, there is a case

28:32

here for breaking one level of international

28:34

law to stop the breaking of another

28:36

level.

28:37

Well, let's put it this way. I think where

28:39

this ends depends a lot on what

28:41

happens next and what the

28:43

impact is for international law. It depends on

28:46

what happens next. If

28:48

Ukraine manages to hold out,

28:51

it is an extraordinary example

28:54

where law was really

28:56

its most powerful weapon.

28:58

The fact that Ukraine was fighting

29:00

a lawful war, that it was fighting as lawfully

29:02

as is feasible, that

29:05

it was defending itself

29:07

lawfully under Article 51, that

29:09

it was abiding by the international

29:11

humanitarian law, that that

29:14

was the thing that led

29:16

the world to rally to its case and

29:19

that it survived as a result, which

29:21

we hope it will.

29:23

That will be a great triumph in many

29:25

ways for international law.

29:27

I think that what happens next

29:29

on cluster munitions, if this response

29:33

can lead to more clarity about

29:35

the fact that cluster munitions are inherently

29:37

unlawful. And we mentioned there's

29:39

a cluster munitions convention, US is

29:41

not party to it, Ukraine is not party to it,

29:44

Russia is not party to it.

29:46

I don't know that I would say that it's a completely

29:48

settled issue yet that is inherently

29:50

unlawful ammunition. If the

29:53

US were to

29:55

actually sign that convention, that would

29:57

make a real difference. That would send a message.

29:59

that, okay, this was an effort

30:03

to deal with a particular problem at this moment,

30:05

but we understand this

30:07

is no longer going to

30:09

be a kind of munition that can be lawfully

30:12

deployed. That would be, I think, a really

30:14

important step to fixing the

30:16

harm maybe that's been done here.

30:19

And I think that holding these war crimes trials

30:21

and holding to account Russian soldiers and

30:24

mercenaries who've engaged in these war

30:26

crimes and having the International

30:28

Criminal Court underway and actually

30:30

effective at carrying

30:33

out its mission, which we're

30:35

still at the very early days of that, but if it's able

30:37

to succeed at bringing to account

30:39

some of the top leaders for waging

30:42

this war in this unlawful manner,

30:44

these will be victories for

30:47

international law. These will actually, the breaking

30:50

of international law is not by

30:52

itself

30:53

enough to erode international law. The

30:56

failure to

30:57

respond would erode it. And so the question is, what

30:59

is the response going to be? Are we

31:01

going to succeed in sort

31:03

of reaffirming these norms through holding to

31:05

account those who violated them, or is

31:07

the system going to fall apart? And so

31:09

for me, it's not just the fact

31:12

that this war is happening that we need to

31:14

look at, we need to look at what can we do

31:16

to

31:16

strengthen those international legal norms. And

31:19

I think the answer is there's a lot we can do. It's

31:21

not foreordained, but that's really up to us

31:23

and that's up to what happens next.

31:24

And of course, I think the most important norm to

31:26

reinforce here at this moment in time

31:29

is that it is not okay to breach the

31:31

sovereignty of another nation state,

31:33

because once you let that norm slide,

31:35

then you open up a can of worms that the rest

31:38

of the world most certainly doesn't want to see.

31:40

Honor, thank you so much for taking the time

31:42

for taking us through not only the latest

31:44

developments, but also what has happened in the last

31:47

year in Russia's offensive war against

31:50

Ukraine. Tell us, where can we keep up

31:52

with the latest developments? Where can we keep up with

31:54

your

31:54

research on these issues?

31:56

Well, you can follow me on

31:58

all of the social media. sites at

32:01

at Ona Hathaway. So O-O-N-A-H-A-T-H-A-W-A-Y.

32:06

I'm on Twitter under that name and

32:08

all the other Twitter follow-ons

32:10

under that name. And whenever I write, I'll

32:12

be posting.

32:13

Wonderful. Thank you so much. And

32:15

I look forward to getting you back on the podcast again.

32:17

You are a resident international law

32:20

expert by this moment in time to talk

32:22

about what it is that we can do to reinforce

32:24

those laws against the use of cluster

32:27

munitions. Ona, thank you so much for your time.

32:29

Thank you for

32:31

having me. Thanks for listening. A reminder

32:34

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