German cluster munitions to Ukraine (Investigation report)

There are two important agreements designed to protect civilians in war:
Ottawa - against anti-personnel mines
Oslo - against cluster munitions.

Germany is a signatory to both. This investigation is examining whether or not it is complying with the Oslo Convention.

The German government has announced that it is supplying Ukraine with AT2 DM1399 anti-tank mines:
https://www.bundesregierung.de/breg-de/themen/krieg-in-der-ukraine/lieferungen-ukraine-2054514
For the first delivery, nothing was said about the form and the BAFA, which is responsible for export control, refused to provide information on several occasions (last mail 14.jun.23).
For the second delivery, announced in November 2023, it became clear that missiles containing the anti-tank mines would be delivered:
https://www.bmvg.de/de/aktuelles/neues-400-millionen-euro-paket-fuer-ukrainische-streitkraefte-5679858

More precisely, each missile ejects up to 28 mines, which float to the ground with parachutes and are detonated there by touching an antenna or a magnetic detonator (which also reacts to civilian cars):
https://www.globaldefensecorp.com/2022/09/26/germany-delivers-at-2-anti-tank-mines-to-ukraine/

The Oslo Convention defines cluster munitions in Article 2, paragraph 2 as follows:
https://www.clusterconvention.org/files/convention_text/Convention-ENG.pdf#page=2

2. “Cluster munition” means a conventional munition that is designed to disperse or release explosive submunitions each weighing less than 20 kilograms, and includes those explosive submunitions. It does not mean the following:
(a) A munition or submunition designed to dispense flares, smoke, pyrotechnics or chaff; or a munition designed exclusively for an air defence role;
(b) A munition or submunition designed to produce electrical or electronic effects;
(c) A munition that, in order to avoid indiscriminate area effects and the risks posed by unexploded submunitions, has all of the following characteristics:
(i) Each munition contains fewer than ten explosive submunitions;
(ii) Each explosive submunition weighs more than four kilograms;
(iii) Each explosive submunition is designed to detect and engage a single target object;
(iv) Each explosive submunition is equipped with an electronic selfdestruction mechanism;
(v) Each explosive submunition is equipped with an electronic selfdeactivating feature;

(Emphasis and indentations by me)

For an ammunition not to be considered cluster munition, all conditions of c) must be fulfilled.
This is not the case for the rockets with AT2 at least for i) and ii), each rocket contains 28 anti-tank mines (=more than 10):
https://www.globaldefensecorp.com/2022/09/26/germany-delivers-at-2-anti-tank-mines-to-ukraine/ ,
the anti-tank mines weigh 2.22 kg each (less than 4) and are not point target ammunition because the wind propels them:
https://de.wikipedia.org/wiki/AT2_(anti-tank mine) .

The Convention also states that "This Convention does not apply to mines." (Article 1, paragraph 3).

However, we are not dealing here with individual anti-tank mines, but with missiles filled with anti-tank mines.

The State Secretary in the BMWK responsible for the authorisation, Sven Giegold, argues (mail 27.nov.23):
"Rockets as means of delivery of AT-2 anti-tank mines are also not covered by the Oslo Convention, even if up to 28 AT-2 anti-tank mines are deployed with one rocket. This is because the exclusion of Art. 1 para. 3 of the Oslo Convention is to be understood comprehensively and, according to the history of the negotiations, refers not only to mines per se, but also to ammunition containing mines as submunition."
'Unfortunately', there is no reference to this 'far-reaching interpretation' in the minutes of the proceedings, insofar as they are public:
https://www.streubomben.de/oslo-abkommen-verbot-streumunition/der-oslo-prozess/ ,
nor in the proposal of the German delegation in Wellington, 19 February 2008
https://www.streubomben.de/fileadmin/redaktion/Archiv/Landmine.de/pdf/wellington_dtl_definitionspaper_190208_01.pdf

The State Secretary's reasoning may still have applied until 2011, when the mines were fired individually from magazines using the Skorpion mine launcher:
https://de.wikipedia.org/wiki/Minenwurfsystem_Skorpion , photo at the end

However, this no longer applies since they have been used with the MARS(II) launcher in M26 missiles:
https://de.wikipedia.org/wiki/Multiple_Launch_Rocket_System
This means that the rockets as a whole fulfil the conditions for cluster munitions and the AT2s are their submunitions.

Anyone attempting to build a bomb from screws, Weedex, firecrackers and an empty fire extinguisher is liable to prosecution, even though all the individual parts are legally available.
Anyone who fills rockets with anti-tank mines as submunitions is creating cluster munitions, even if the anti-tank mines are individually authorised.

(This completely ignores the fact that Italy has abolished the AT2 because tests there have shown that they can be triggered by people, thus also violating the Ottawa Convention:
https://military-history.fandom.com/wiki/AT2_mine ,
see also Handicap International, Landmines fact sheet November 2023:
https://www.handicap-international.ch/sn_uploads/document/2023.11.14---Landmine-Monitor-2023_CP_DE.pdf , page 11
"Anti-vehicle mines may continue to be produced. However, these can also be triggered by civilian vehicles and in some cases directly by people. ")

The reports of landings in residential areas and civilian casualties are not verifiable for me. The Ukrainian army used to explain that these were montages with individual parts transported from the battlefield. Nevertheless, the scenario is plausible due to the design and deployment method of the missiles. The Oslo Agreement was concluded precisely because cluster munitions predominantly hit civilians (caution, some of the photos are disturbing):
https://www.donbass-insider.com/2023/03/29/ukrainian-army-kills-three-civilians-and-wounds-four-others-in-donetsk-with-western-weapons/



Result: The German government repeatedly undermines the Oslo Agreement, even though it is valid German law.
https://www.bgbl.de/xaver/bgbl/start.xav?startbk=Bundesanzeiger_BGBl&jumpTo=bgbl209s0502.pdf#__bgbl__%2F%2F*%5B%40attr_id%3D%27bgbl209s0502.pdf%27%5D__1692720475834

Assessment:

The attitude of the State Secretary (who is quite effective on environmental issues) is hardly surprising if you follow the alignment of the Greens' military 'strategy' with that of the CDU in recent years. However, you have to be out of all good spirits and morals to authorise the delivery of missiles that drop anti-tank mines with parachutes near densely populated areas. To then speak of a "values-led arms export policy" https://www.bmwk.de/Redaktion/DE/Pressemitteilungen/2023/12/20231220-bundesregierung-legt-rustungsexportbericht-fur-das-jahr-2022-vor.html is an impertinence.
The same applies to the BAFA officials, the 'defence' ministry and the members of the Bundestag, who silently approve of this (as they did before referring to the war in Afghanistan).

The fact that the responsible organisations UNODA https://disarmament.unoda.org/conventional-arms/ and Cluster Convention Implementation Support Unit https://www.clusterconvention.org/implementation-support-unit/ have not even responded to three complaints each with an acknowledgement of receipt casts doubt on the effectiveness of some UN institutions.

For the NGOs that have campaigned against cluster munitions for years, the transition from mine launchers to cluster munition rockets means that their 'negotiating partners' will always be looking for technological changes and other ways to outsmart them.

If they silently accept this, it will set a precedent in future wars.