Commitment to the Convention on Cluster Munitions

Policy

The United Kingdom of Great Britain and Northern Ireland (UK) signed the Convention on Cluster Munitions on 3 December 2008, ratified on 4 May 2010, and the convention entered into force for the country on 1 November 2010.

The Cluster Munitions (Prohibitions) Act 2010 serves as the UK’s implementing legislation for the Convention on Cluster Munitions, providing penal and financial sanctions for violations of its provisions.[1] The UK has classified cluster munitions in the highest category of prohibited exports under its Export Control Order of 2008.[2]

The UK submitted its initial Article 7 transparency report for the Convention on Cluster Munitions on 28 April 2011 and provided annual updates in 2012, 2013, and on 30 April 2014.[3]

The UK participated throughout the Oslo Process that created the Convention on Cluster Munitions. Just before the conclusion of the negotiations in Dublin in May 2008, the UK changed its position to support a ban on all cluster bombs, a decision that had significant impact in influencing support in other countries for the convention text.[4]

The UK has continued to actively engage in the work of the Convention on Cluster Munitions since 2008. It has participated in every Meeting of States Parties, including the Fourth Meeting of States Parties in Lusaka, Zambia in September 2013, where it made statements on stockpile destruction and international cooperation and assistance. The UK has attended all of the convention’s intersessional meetings held in Geneva, including in April 2014, where it announced the completion of its stockpile destruction.

The UK has continued to refer to the convention at the ministerial level as an important contribution to action against the worst effects of conflict, but there were few examples of specific UK actions to promote universalization of the Convention on Cluster Munitions in 2013 or the first half of 2014.[5] As part of their effort to end sexual violence in war, UK Foreign Secretary William Hague and Special Envoy for the United Nations High Commissioner for Refugees (UNHCR) Angelina Jolie issued a joint statement in September 2013 that cited the precedent of the international treaties banning cluster munitions and antipersonnel landmines as “agreements [that] were once considered impossible” and that “all began with moral outrage and led to global action.”[6]

The UK government first condemned Syria’s continued use of cluster munitions at the UN General Assembly (UNGA) First Committee on Disarmament and International Security in October 2012.[7] It has since condemned the cluster munition use on several occasions.[8] On 22 October 2013, the UK hosted a meeting of the “London 11” group of Friends on Syria that issued a communiqué calling on the Syrian regime to “end the siege of urban areas and the indiscriminate attacks against civilians, in particular through air bombardment and the use of ballistic missiles, cluster bombs and explosive barrels.”[9] In a February 2014 statement on Syria, the UK Foreign Secretary commented that “bombardment of civilian areas with barrel bombs continues unabated, and there are reports of attacks with cluster munitions as well.”[10]

The UK has voted in favor of recent UNGA resolutions condemning the use of cluster munitions by the Syrian government armed forces, including Resolution 68/182 on 18 December 2013, which expressed “outrage” at “continued widespread and systematic gross violations of human rights…including those involving the use of…cluster munitions.”[11]

As a permanent member of the UN Security Council, the UK supported Resolution 2155 unanimously adopted on 27 May 2014, which noted “with serious concern reports of the indiscriminate use of cluster munitions” in Jonglei, South Sudan in February 2014 and urged “all parties to refrain from similar such use in the future.”[12]

The UK is a State Party to the Mine Ban Treaty. It is also party to the Convention on Conventional Weapons.

Interpretive issues

The UK has expressed its views on the interpretation and implementation of a number of key provisions in the convention during the process of preparing its national legislation, including the prohibition on foreign stockpiling, the prohibition on transit, the prohibition on investment in cluster munition producers, and the prohibition on assistance with prohibited acts in joint military operations. A number of ministerial statements are on record clarifying the meaning of the UK’s national legislation on these issues and recognizing the positive obligations under the convention.[13] Additionally, in late 2010 several questions were raised in parliament in response to reports in the British media based on United States (US) Department of State cables made public by Wikileaks.

Foreign stockpiling

In June 2008, immediately after the adoption of the convention, the UK said it would seek the removal of foreign stockpiles of cluster munitions from UK territories within the eight-year period allowed for stockpile destruction in the convention.[14] In December 2009, the government stated that the US had identified the cluster munitions on UK territory as “exceeding operational planning requirements” and that they would be “gone from the UK itself by the end of [2010]” and “gone from other UK territories, including Diego Garcia, by the end of 2013.”[15] In 2010, the UK announced that there were now “no foreign stockpiles of cluster munitions in the UK or on any UK territory.”[16]

Transit

In March 2010, UK parliamentarians asked if “transit” of cluster munitions through UK territory is prohibited under the Cluster Munitions (Prohibitions) Act 2010. The government stated that transit “would not in itself be prohibited, but a direct application would have to be made to the Secretary of State who would have to grant permission before it could happen. We would be reluctant to grant such permission.”[17]

In December 2010, the Parliamentary Under Secretary of State for Defence said that under Section 8 of the UK’s legislation, the Foreign Secretary may grant authorization for visiting forces of states not party to the Convention on Cluster Munitions to “possess cluster munitions on, or transfer them through, UK territory.”[18] In 2011, a Minister of State clarified that this provision had been used only once, and that was to grant the US a temporary extension to keep cluster munitions on UK territory as it underwent the process of removing all remaining stockpiles.[19]

A US Department of State cable dated 21 May 2009 and made public by Wikileaks on 1 December 2010 stated that the head of the Foreign and Commonwealth Office’s Security Policy Group had “reconfirmed” to US officials that “off-shore storage” of cluster munitions “on US ships would still be permitted” until 2013, and by temporary exception.[20] In response to a parliamentary question on the cable, the previous Labour government minister responsible for the legislation said that “it was our complete intention that there would be no American cluster munitions on British territories anywhere in the world.”[21]

Interoperability

The convention’s Article 21 provisions on interoperability, the issue of joint military operations with states not party that use cluster munitions, are addressed in Clause 9 of the UK’s national legislation.[22] In 2011, the UK said that its interpretation of the Article 21 is that “notwithstanding the provisions of Article 1 [prohibition on assistance], Article 21(3) allows States Parties to participate in military operations and cooperation with non-States Parties who may use cluster munitions. UK law and operational practice reflect this.”[23]

During the development of the UK’s implementation legislation, parliamentarians expressed concern that this clause would provide a loophole that would undermine the purpose of the convention and of the UK’s legislation, which is the elimination of cluster munitions.[24] When pushed by members of parliament to clarify just exactly what activities this clause would permit UK troops engaged in joint military operations to do, the government responded that UK troops “would not be allowed to request use of [cluster] munitions where the choice of munitions was within their exclusive control” but that “they could facilitate operations where [cluster munitions] might be used by a partner.”[25]

Parliamentarians argued that there would likely be situations that, while not illegal under the bill, would clearly be against the spirit and intention of the legislation and pressed the government on the need to develop proper guidelines and briefings for the UK military.[26] The government responded that “States Parties have to make sure that any other state with which they are working understands the basis on which their personnel will be engaged,” and added, “We have to make sure there is clear guidance for personnel, so they know exactly what they can and cannot do. That is already in hand.”[27] A significant result of the parliamentary debates on interoperability and Clause 9 was the recognition by the government of the need to promote universal adherence to the convention.

During the Libya conflict in 2011, Foreign Secretary William Hague stated, “We and our North Atlantic Treaty Organisation allies do not use cluster munitions.”[28]

Advertising of cluster munitions at UK arms fairs

The 2010 Cluster Munitions (Prohibitions) Act makes it an offense for a person to “make arrangements under which another person acquires a prohibited munition,” “to make arrangements under which another person transfers a prohibited munition,” or to “assist, encourage or induce” any other person to engage in prohibited acts.

Concerns have been raised in the past about the promotion of cluster munitions by exhibitors at the annual Defence Systems and Equipment International Exhibitions (DSEi) in London. In 2009 and 2011, the Pakistan Ordnance Factory stand and Pakistan’s Defence Export Promotion Organization pavilion at the DSEi in London displayed promotional materials advertising their cluster munitions.[29] Exhibitor information regarding “compliance” for the exhibition in September 2013 emphasized that it is prohibited to exhibit “non-unitary munitions” except those excluded from prohibition under the Convention on Cluster Munitions.[30] No advertisement of cluster munitions was reported at the 2013 exhibition.

Investment

While direct investment in cluster munitions is considered prohibited by Cluster Munitions (Prohibitions) Act under the prohibition on assistance, the issue of indirect investments is not addressed. In 2011, the UK government recognized the need for further work to address “the problem of remote financing” and said that it had set up a working group to look into the matter.[31] The working group is not believed to have met as of July 2014.

In 2011, Under Secretary of State in the Foreign and Commonwealth Office Alistair Burt stated that “indirect financing, including investments in companies that may produce cluster munitions alongside a range of other items and services, is an issue for individual institutions to consider under their own investment charters and social corporate responsibility agendas.”[32] There have been no parliamentary statements since that would suggest further action by the government to address investment in cluster munition manufacturers.

Financial institutions have responded to public pressure and campaigning actions by NGOs calling for disinvestment from cluster munition manufacturers. A 2013 report on worldwide investments in cluster munitions by NGOs identified nine UK financial institutions investing in companies producing these weapons.[33] The report also identified six UK organizations as having guidelines on prohibiting investment in cluster munitions.[34]

Use, production, and transfer

The UK used cluster munitions extensively in the past, including in the Falkland Islands/Malvinas in 1982, in Iraq and Kuwait in 1991, in the Federal Republic of Yugoslavia (including Kosovo) in 1999, and in Iraq in 2003.[35] The UK has also produced, exported, and imported cluster munitions. The UK has declared that it now has no production facilities for manufacturing cluster munitions.[36]

The UK produced several variants of the BL755 bomb with 147 submunitions and has also produced the L20A1 artillery projectile with 49 M85 dual-purpose improved conventional munition (DPICM) submunitions under license from Israel Military Industries.[37]

BL755 cluster bombs were exported to, or were otherwise finally possessed by, the following countries: Belgium, Bosnia and Herzegovina (BiH), Croatia, Ecuador, Ethiopia, Germany, India, Iran, Italy, Montenegro, the Netherlands, Nigeria, Oman, Pakistan, Portugal, Saudi Arabia, Switzerland, Thailand, United Arab Emirates, and the former Federal Republic of Yugoslavia.[38]

The UK also imported cluster munitions from the US: M483 155mm artillery projectiles, M26 rockets for multiple launch rocket system (MLRS), M261 Multi-Purpose Submunition (MPSM) rocket warheads used with CRV-7 air-to-surface launchers, and CBU-87 cluster bombs.[39]

Cluster Munition Monitor 2011 reported in detail on the ambiguous status of the “Starstreak” high velocity missile, produced by Thales Air Defence Limited, with respect to the Convention on Cluster Munitions and the UK’s Cluster Munitions (Prohibitions) Act.[40]

Stockpile destruction

The UK once stockpiled a total of 190,828 cluster munitions and 38,758,898 submunitions, as shown in the following table.[41]

Cluster munitions formerly stockpiled by the UK[42]

Under Article 3 of the Convention on Cluster Munitions, the UK was required to declare and destroy or ensure the destruction of all stockpiled cluster munitions under its jurisdiction and control as soon as possible, but no later than 1 November 2018.

On 19 December 2013, the UK Foreign and Commonwealth Office issued a photograph showing a Ministry of Defence official holding a M26 bomblet that the accompanying statement described as “the very last of 38,758,898 submunitions [being placed] into the cryofracture destruction plant” for destruction at a facility in Italy on 17 December 2013. According to the statement, “This completes the disposal of the United Kingdom’s entire Cluster Munitions stockpile, a requirement of the Oslo Convention, 5 years ahead of the mandated timeline.”[43]

In April 2014, the UK made a brief announcement at the convention’s intersessional meetings to confirm the completion of stockpile destruction in December 2013, describing the process as “carried out in a safe, secure, and environmentally-friendly manner.”[44] The UK declared the completion of the stockpile destruction in the April 2014 Article 7 report.[45]

A total of 190,828 cluster munitions and 38,758,898 submunitions were destroyed in the stockpile destruction process that began prior to the convention’s November 2010 entry into force for the UK and saw the cluster munitions transferred to Germany, Norway, and Sweden for destruction.[46]

In April 2014, the UK estimated the cost of the entire stockpile destruction process at “around £40 million” or approximately US$67 million.[47]

Retention

As of 31 March 2014, the UK had no cluster munitions or submunitions retained for training and research, as permitted by Article 3 of the Convention on Cluster Munitions. As in its 2013 Article 7 report, the 2014 Article 7 report states that “The UK has no immediate plans to acquire and retain sub-munitions for permitted purposes, but reserves the right to do so.”[48]

Previously, in the 2011 and 2012 Article 7 reports, the UK declared the retention of 956 explosive submunitions of four different types.[49] In 2013, the UK reported that the retained submunitions were destroyed by demolition in the reporting period due to “concerns over condition, packaging and storage.”[50] The report detailed the destruction of a total of 956 submunitions that the UK had previously reported as being retained for training purposes.[51]

Prior to this destruction, in September 2011 the UK had informed States Parties that “it is the UK’s current intention to not retain any prohibited munitions from our own, former operational, UK stocks. We will however, retain a small number of prohibited sub-munitions for trials, development and training activities for the advancement of counter measures to any uncertain future threats; acting, of course, within the requirements of Article 3.6.”[52]

In April 2014, the UK again affirmed said that the armed forces “may” retain “a small number” of submunitions for permitted purposes in the future.[53]

 

Contamination and Impact

Overall Mine Action Performance: POOR[1]

Mines

The United Kingdom (UK) is affected by antipersonnel mines by virtue of its control and assertion of full sovereignty over the Falkland Islands/Malvinas,[2]which were contaminated during the armed conflict between the UK and Argentina in 1982. The conflict resulted in many thousands of antipersonnel and antivehicle mines being laid on the islands, most by Argentina. Following land release in 2011–2012, 113 mined areas remained to be released, covering a total area of more than 9km² and which contain some 19,000 mines.[3] The UK had not clarified how much land remains to be released as of 2014.

No civilian mine casualties have ever occurred on the islands.[4] The UK has reported that six military personnel were injured in 1982 and two more were injured in 1983. Most military accidents took place while clearing the minefields in the immediate aftermath of the 1982 conflict or in the process of trying to establish the extent of the minefield perimeters, particularly where no detailed records existed.

Over the years, however, there have been numerous instances where civilians have deliberately or inadvertently entered a minefield. The Ministry of Defence reported “infringement” of minefields by a total of six locals and 15 foreign fishermen or tourists between March 2000 and December 2008.[5]On 6 December 2008, three crew members of a Belgian yacht inadvertently entered a minefield at Kidney Cove on East Falklands but were not injured. In October 2002, a Falkland Islander was fined £1,000 (then US$1,503) for entering a minefield on Goose Green.[6]It is a criminal offense on the Falkland Islands to enter a minefield.

The socio-economic impact of contamination on the islands is said to be minimal. All mined and suspected hazardous areas (SHAs) are reported to have been “perimeter-marked and are regularly monitored and protected by quality stock proof fencing, to ensure the effective exclusion of civilians.”[7] According to the UK, the mined areas represent “only 0.1% of land used for farming. The mined areas cover a wide range of terrain including sandy beaches and dunes, mountains, rock screes, dry peat, wet swampy peat, and pasture land.”[8]A number of instances of cattle, sheep, or horses entering the minefields have been recorded since 2000, some of which resulted in the animals’ deaths.[9]

Cluster munition remnants

There are an unknown number of cluster munition remnants on the Falkland Islands/Malvinas as a result of use of BL755 cluster bombs by the UK against Argentine positions during the 1982 armed conflict.

In February 2009, the Ministry of Defence stated in a letter to Landmine Action the following: “According to historical records either 106 or 107 Cluster Bomb Units (CBU) were dropped by British Harriers and Sea Harriers during the conflict. Each CBU contains 147 BL755 submunitions and using the higher CBU figure (107), a total of 15,729 sub-munitions were dropped. Using a 6.4% failure rate assessed during in-service surveillance over 15 years, we would estimate that 1,006 would not explode. Given that 1,378 BL 755s were cleared in the first year after the conflict and that a further 120 have been found and disposed of since (totaling 1,498), clearly there was a slightly higher failure rate. Even if the rate had been closer to 10% and 1,573 had failed, we can only estimate that some 70 remain but that due to the very soft nature of the peat found on the islands, many of these will have been buried well below the surface. We believe that the majority of those remaining are now contained within existing minefields and these will be cleared in due course.”[10]

The UK has not reported any clearance of submunitions since operations were conducted in 2009–2010 across four mined areas in which two submunitions were destroyed.[11]

Other explosive remnants of war

The extent of other explosive remnants of war (ERW) contamination on the Falkland Islands/Malvinas is not known, but survey and clearance results in the past few years suggest some unexploded ordnance (UXO) remain to be cleared. A total of 11 items of UXO, including two submunitions, were destroyed in clearance operations in 2009−2010 and another 79 UXO items in operations conducted between January and March 2012.[12]

Mine Action Program

A National Mine Action Authority (NMAA) composed of both the UK and the Falkland Islands governments was established in 2009 to oversee clearance of mined areas.[13]The Ninth Meeting of States Parties noted the UK’s undertaking to provide regular reports on the establishment of an NMAA “and other implementation bodies.”[14]

In August 2009, the UK contracted Colin King Associates to manage a Falkland Islands Demining Programme Office (DPO) mandated to execute the policies of the NMAA and to coordinate mine action activities on the Falkland Islands/Malvinas.[15] In 2011, the contract for the DPO was awarded to Fenix Insight.[16] In mid-October 2009, Battle Area Clearance, Training, Equipment and Consultancy International Limited (BACTEC) won the first in a series of contracts for clearance and land release[17] leading to the start of operations at the beginning of December 2009.[18]

Land Release

No clearance or land release took place in the 2013−14 austral winter demining season. The UK said it was instead “focused on agreeing a multi-year plan for the next round of mine clearance operations.” The UK gave no timelines for starting the next phase but said it aimed to release details of the plan “as soon as possible.”[19]

BACTEC conducted battle area clearance (BAC) south of Stanley between January and the end of March 2012 releasing 3.7km² of SHA and destroying 79 items of UXO.[20] Fenix Insight, managing the Falklands operations, reported that BACTEC conducted further clearance in 2013 but gave no details of the area involved. The project brought the total amount of land released by survey or clearance to 4.7km² since operations started in 2009.[21]

Mine clearance in 2013−14

For the second time in three years, no mine clearance occurred in the 2013−14 demining season. The UK had reported that in early 2013 BACTEC had conducted technical survey, mine and battle area clearance, clearing five minefields and destroying 296 antipersonnel mines, 32 antivehicle mines, and six booby traps. It did not give details of the amount of land cleared or released in this operation.[22]

Fenix Insight reported that at the end of the operation, the UK had released a total of 4.7km² of battle area, including 22,053m² that had been subjected to full manual clearance or technical survey and 13,660m² that was subject to a combination of mechanical technical survey and manual follow up. The remaining land was released through non-technical and technical survey and BAC.[23]

Article 5 Compliance

Under Article 5 of the Mine Ban Treaty (and in accordance with the 10-year extension request granted by States Parties in November 2008), the UK is required to destroy all antipersonnel mines in mined areas under its jurisdiction or control as soon as possible, but not later than 1 March 2019.

The Ninth Meeting of States Parties in December 2008 agreed to the UK’s request for a 10-year extension but noted the UK had agreed to provide, not later than the end of June 2010, a detailed explanation of how demining is proceeding and the implications for future demining in order to meet the UK’s obligations under Article 5.[24] As of May 2014, the UK had not fulfilled this commitment.

At the June 2010 Standing Committee meetings, the UK stated that the Foreign and Commonwealth Office (FCO) would analyze data gathered from the Phase 1 operations on four sites in 2009−2010 “and make recommendations for future work based on this analysis.” It added: “We intend to report the findings of our analysis and agreed next steps to States Parties at the Meeting of States Parties in November 2010.”[25] The UK did not announce further clearance plans at the December 2010 Meeting of States Parties or subsequently.

In June 2011, the UK stated that it had planned a two-year pilot project in its extension request before it would be in a position to set out a full plan to meet its legal obligations.[26] On that basis, the UK was due to present the full plan in 2013. The FCO said in May 2014 it would release details of plans for a fourth phase of demining “as soon as possible.”[27]

Compliance with Article 4 of the Convention on Cluster Munitions

Under Article 4 of the Convention on Cluster Munitions, the UK is required to destroy all cluster munition remnants in areas under its jurisdiction or control as soon as possible, but not later than 1 November 2020.

As noted above, the Falkland Islands/Malvinas are believed to be still affected to a limited extent by unexploded submunitions. In its initial Convention on Cluster Munitions Article 7 report, the UK states that “there are no UK areas contaminated by cluster munitions or explosive sub-munitions.”[28] The UK seems to consider the possible contamination on the Falkland Islands/Malvinas to be residual in nature and not amenable to being addressed in terms of “contaminated areas.” With significant amounts of clearance already completed, such an assessment may be reasonable. This assessment could be further clarified by the release of any data on the locations of strikes using BL755 cluster munitions to determine if any strikes were targeted inside the mined areas. Any strike sites inside mined areas would likely not have been addressed in the earlier phase of clearance due to the challenge of access.

Recommendations

·         The UK should provide a comprehensive statement clarifying the results of the first three phases of operations and detailing the location and amount of land remaining to be released.

·         After years of delay and stop-start demining, the UK should present detailed plans and timelines for completing demining of the Falkland Islands/Malvinas in accordance with its international legal obligations.

 

Casualties

In 2009, Landmine and Cluster Munition Monitor identified 76 British military casualties (all killed) in Afghanistan from improvised explosive devices (IEDs); based on information available it was not possible to determine how many of the casualties were caused by victim-activated devices.[1] No casualties from landmines or explosive remnants of war (ERW) were identified.[2] This compares to 33 British military casualties (all killed) in Afghanistan from IEDs and landmines in 2008.[3] With the limited data available, it is not possible to determine incidents specifically caused by victim-activated landmines, ERW, or IEDs. Total figures on British mine, ERW, and victim-activated IED casualties abroad were not available, though given military casualty statistics, it is likely that they number in the hundreds.[4] In 2009, non-governmental sources tracking casualties in Afghanistan and Iraq criticized the Ministry of Defence for the lack of transparency and accuracy in reporting British casualties.[5]

Victim Assistance

The total number of mine/ERW survivors in the United Kingdom is unknown, but the vast majority are thought to be disabled veterans who were injured on foreign soil and who receive compensation through the Armed Forces Compensation Scheme (AFCS). Other benefits to which military survivors claiming AFCS compensation may have been eligible (depending on the severity of their injuries) included income support, housing benefit, and free medical prescriptions, among others.[6]

In 2012, the United Kingdom of Great Britain and Northern Ireland (UK) contributed £13,873,858 (US$21,994,227)[1] in mine action funding to 11 states and one other area as well as the UN Voluntary Trust Fund for Assistance in Mine Action (VTF); this represented an increase of 22% from that in 2011 and 35% since 2010 in US dollars. The largest contributions in 2012 went to Afghanistan and Sudan. The UK provided funding to 10 countries through the UK-based NGOs Mines Advisory Group (MAG) and HALO Trust; approximately one third of the UK funding was through the VTF. [2]

Contributions by recipient: 2012[3]

In its 2010–2013 mine action strategy, the UK Department for International Development (DfID) stated it does not support programs that specifically target mine survivors, and that victim assistance is best provided through health services available to all persons with disabilities.[4] In January 2013, DfID commissioned an evaluation of its 2010–2013 Mine Action Strategy to examine whether the programs funded under the strategy were effective and sustainable and whether they delivered development benefits to mine-affected areas.[5] As of August 2013 the results of the evaluation had not been released.

Since 2008, DfID has averaged £12.1 million per year for mine action.

Summary of contributions: 2008–2012[6]