Fintan O’Toole: Is any given act a potential war crime only when the other side does it?

Irish people naturally think everything that happens in Croke Park has global importance. But one thing that happened there really is of worldwide significance: the United Nations Convention on Cluster Munitions, hammered out at the home of the GAA in 2008.

In February last year, just days into Russia’s invasion of Ukraine, the then White House spokeswoman Jen Psaki, was asked: “There are reports of illegal cluster bombs and vacuum bombs being used by the Russians ... Is there a red line for how much violence will be tolerated against civilians in this manner that’s illegal and potentially a war crime?”

She replied: “We have seen the reports. If that were true, it would potentially be a war crime.”

Psaki was right. And yet the Biden administration is supplying thousands of cluster weapons to Ukraine to use in its counterattack against Russia’s invasion.

Catastrophic decline of wild Irish salmon is another of the slow scandals of Irish life

---

Have we ditched the Stardust-era stereotype that the working classes are wild and reckless?

---

We are facing the terrifying result of the West’s three stupid mistakes in the Middle East

---

If Israel succeeds in Gaza, it will drag the West down with it

---

This exposes a double standard that undermines the West’s moral position in this war. Without that moral position, there are only power games.

In 2008, 107 countries signed the United Nations Convention on Cluster Munitions. It not only banned the use of these weapons – it required those who already possessed them to destroy their stockpiles by 2016.

As it happens, Ireland has a special relationship to that convention – it was agreed in Croke Park at a conference hosted by the then minister for foreign affairs Micheál Martin and chaired by the Irish diplomat Dáithí Ó’ Ceallaigh. It is one of the finest achievements of Irish diplomacy and, incidentally, a good example of a what a constructive and engaged neutrality looks like in practice.

Three countries that did not sign the convention, however, were Russia, Ukraine and the United States. The consequences of this failure are now all too apparent.

Cluster weapons are criminal because they are, as Human Rights Watch puts it, “inherently indiscriminate”. They open in mid-air and disperse dozens (in some cases hundreds) of smaller bomblets over a wide area.

Many of these bomblets fail to explode on impact. Civilians, including children, step on them or pick them up weeks, months or even decades later, and are killed or maimed. That’s why they are banned.

Can you credibly prosecute people for doing things you yourself justify?

It is no surprise that this ban has not stopped Vladimir Putin. Russia has fired cluster bombs at civilian targets, including an attack on a crowded train station in Kramatorsk last year that killed at least 58 people and wounded dozens more.

But Ukraine has also been using cluster munitions against Russian-held positions, including urban areas. The UN and Human Rights Watch have confirmed their extensive use by Ukraine last year against the city of Izyum and its suburbs, killing and wounding civilians and leaving unexploded bomblets that will kill innocent people in the future.

Which raises a crucial question: is any given act a potential war crime only when the other side does it? It’s a question that hovers over the whole idea of eventually prosecuting Putin and his henchmen for their appalling depredations: can you credibly prosecute people for doing things you yourself justify?

When it comes to the use of cluster weapons, the worst case since the second World War is what the US did in its secret war on Laos between 1964 and 1973. It dropped 270 million of them, millions of which remain in the rice fields and forests. Fifty years later, innocent people, including children, are still being killed and maimed by the bomblets.

The US has never lived up to its duty to clean up these deadly hazards in Laos. What confidence can there be that, when the war in Ukraine is over, it will be any more assiduous in removing the lethal remnants of the cluster weapons it is sending there?

A similar problem arises with the campaign, led by the brilliant international human rights lawyer Philippe Sands, for the establishment of a Special Tribunal for the Punishment of the Crime of Aggression against Ukraine, aimed at Putin and his inner circle.

There should indeed be such a tribunal, based on the precedents of the Nuremberg and Tokyo trials after the second World War, in which “crimes against peace” were among the charges. But it has to be acknowledged that there was no such tribunal following the US-led invasion of Iraq in 2003, which was also a fundamental breach of the UN charter and an assault on the basic rules of the international legal order.

Or consider calls – in my view justified – for the Russian leadership to be charged with the crime of ecocide for its devastation of large parts of Ukraine’s environment, including the breaching of the Kakhovka dam. Can we discuss it without acknowledging that the word “ecocide” was coined by American scientists in the 1970s to describe their own government’s laying waste by Agent Orange and other toxic herbicides of Vietnam’s forests?

We must avoid whataboutery, of course. Just because a crime was not punished in one instance, it does not cease to be a crime – and the chief criminal right now is indeed Putin.

But, in the case of Ukraine, public support in the western democracies for its struggle to defend itself rests on a clear distinction between right and wrong. Quite simply, the good guys have to behave better than the bad guys.

No one is naive enough to think that war is glorious or that its conduct is free of moral ambiguity. That ambiguity, however, is what makes it crucial to maintain an overarching distinction between those who uphold international law and common decency and those who don’t.

Otherwise, there are no principles, only propaganda. The western public is already sufficiently inclined towards cynicism to be open to the suspicion that allegations of Russian war crimes are based, not on morality, but on momentary convenience.

This is dangerous for Ukraine. The fuzzier the moral difference between itself and Russia, the higher the risk that western public opinion wearies of the whole bloody business and retreats into the comfort zone of “both sides-ism”.

There is a western government that is in a strong position to say this: ours. Ireland’s leading part in the banning of cluster munitions in 2008 gives us a right – and a duty – to speak out clearly now and say that it is not acceptable for the US to supply, or for Ukraine to use, them.

As the host of the conference that created that landmark convention, Micheál Martin, who happens to be foreign affairs minister again, must surely feel that he has a personal stake in upholding it. Which is why it was galling to see his initial reaction to the US decision last week – a general condemnation of the use of cluster weapons that did not manage to mention either Ukraine or the Biden administration.

The Irish stance did toughen up subsequently, with the Taoiseach Leo Varadkar promising to raise objections directly with US officials. But the initial hesitation signalled the State’s discomfort with any criticism of US actions, even when they are so clearly wrong.

This is a real test of whether or not we still have an independent foreign policy. The value of such a policy lies in moral consistency: we hold those we support to the same standards we demand of those we oppose.

That’s what law means. If it does not apply equally to everyone, it is not law. It’s just power dressed up as principle.

Which of course is exactly what Putin wants the world to believe of liberal democracy and the West’s proclaimed values. Nothing vindicates his world view more thoroughly than descending to his level.