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 and ratified on 4 May 2010. It became a State Party on 1 November 2010. 

The Cluster Munitions (Prohibitions) Act 2010 entered into force on 25 March 2010 and creates criminal offenses for violations of the prohibitions contained in the convention.[1] In November 2010, the UK stated that under its Export Control Order of 2008, cluster munitions are considered in the highest category of prohibited exports.[2]

The UK submitted its annual updated Convention on Cluster Munitions Article 7 transparency report on 30 April 2012, covering the period from 1 April 2011 to 31 March 2012.[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 continued its active engagement with the work of the Convention on Cluster Munitions in 2011 and the first half of 2012. The UK attended the convention’s Second Meeting of States Parties in Beirut, Lebanon in September 2011. Its head of delegation, UK Ambassador to Lebanon Tom Fletcher, gave a strong statement drawing on his personal experience of the Oslo Process as “part of the UK team in Downing Street that worked flat out with our mission in Geneva,” noting, “[t]he arguments were fierce. But the humanitarian and moral case prevailed.”[5] The UK made a number of interventions during the meeting, including on stockpile destruction and retention, international cooperation and assistance, and universalization.

The UK participated in the convention’s second intersessional meetings in Geneva in April 2012, where it made statements on universalization, stockpile destruction and retention, and the convention’s architecture.

Promotion of the convention

In 2011 and the first half of 2012, the UK repeatedly stated its commitment to working towards the universalization of the Convention on Cluster Munitions.

In cooperation with the ICRC and NGOs, the UK held a workshop in London in October 2011 to promote universalization of the ban convention with Commonwealth countries.[6] Also in October 2011, Parliamentary Under-Secretary of State in the Foreign and Commonwealth Office Alistair Burt stated, “The Foreign and Commonwealth Office has consistently taken opportunities to lobby counterparts from Russia, China and the US to prohibit cluster munitions and to join the convention. This has included discussions in London, at relevant international meetings, and direct lobbying through our overseas network.”[7]

The UK says it is taking “all appropriate opportunities, be they bilateral or multilateral” to promote universalization of the Convention on Cluster Munitions.[8] In September 2011, the UK said that it was looking at using the Commonwealth Heads of Government meetings “as another means of encouraging fellow Commonwealth Countries, not yet States Parties, to join the Convention.”[9] In April 2012, the UK expressed its “hope that we can increase the value of co-ordination between states and civil society in our work to promote the convention.”[10]

At the Second Meeting of States Parties in September 2011, the UK cautioned, “we must not be complacent. The fact that countries are still using cluster munitions that cause unacceptable harm to civilians should enrage us. We should not have to have this conversation again. … [L]et this end, enough is enough.”[11] In February 2011, a UK Foreign Office spokesperson expressed “serious concern” at reports of Thai use of cluster munitions in its border conflict with Cambodia, stating, “We condemn in the strongest terms the use of cluster munitions that causes unacceptable harm to the civilian population.”[12] In March 2011, Prime Minister David Cameron stated, “we do not use [cluster munitions] and we do not believe that others should either.”[13]

Interpretive issues

The UK 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 munitions 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.[14] Additionally, during late 2010 several questions were raised in Parliament in response to reports in the British media based on 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.[15] 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.”[16] In November 2010, the UK announced that there were now “no foreign stockpiles of cluster munitions in the UK or on any UK territory.”[17] 

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.”[18]

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.”[19] In January 2011, a Minister of State, Lord Howell of Guildford, clarified that this provision had been used only once, stating that “the one exception was made very properly by the previous Foreign and Commonwealth Secretary, Mr Miliband, allowing the US a temporary extension of its right to keep cluster munitions while it went through the process of getting rid of them as part of the running down of cluster munitions stores in UK territory and in the United Kingdom. That is the only exception that has ever been made. For the future, we will consider bringing to Parliament and recording any decisions that may be proposed for temporary extension, and we will do that on a case-by-case basis. I have to say that in a number of instances it could be governed and limited by security considerations.”[20]

In November 2011, UK officials confirmed that the only such authorization given to date was provided by former Foreign Secretary David Miliband to the US Department of State to permit the US to transfer its cluster munitions out of UK territory.[21]

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 Office's Security Policy Group, Nicolas Pickard, had “reconfirmed” to US officials that “off-shore storage” of cluster munitions “on US ships would still be permitted.” According to the cable, the UK’s position was that “any U.S. cluster munitions currently stored on British territory (either UK territory proper, Diego Garcia, or elsewhere) would be permitted to stay until 2013, while any new cluster munitions the USG [US Government] wanted to bring to those sites after the treaty's entry into force for the UK - either before or after 2013 - would require the temporary exception. Any movement of cluster munitions from ships at Diego Garcia to planes there, temporary transit, or use from British territory also would require the temporary exception after entry into force.”[22]

The cable quoted a UK Foreign Office official as telling US officials that: “It would be better for the USG [US government] and HMG [Her Majesty’s Government - UK] not to reach final agreement on this temporary agreement understanding until after the CCM ratification process is completed in Parliament, so that they can tell parliamentarians that they have requested the USG to remove its cluster munitions by 2013, without complicating/muddying the debate by having to indicate that this request is open to exceptions.”

Foreign Secretary Hague said there was “no evidence that Parliament was misled” during the development of the national implementation legislation.[23] The minister of state responsible for the legislation in the previous Labour government said that “it was our complete intention that there would be no American cluster munitions on British territories anywhere in the world.”[24]

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.[25] In June 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.”[26]

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 the UK’s legislation, which is the elimination of cluster munitions.[27] 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.”[28]

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.[29] 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…. 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.”[30] 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.

In May 2011, Foreign Secretary William Hague, responding to a parliamentary question about use of cluster munitions in Libya, said, “We are aware of media reports of the use of cluster munitions by Gaddafi regime forces, in particular around Misrata. We and our North Atlantic Treaty Organisation allies do not use cluster munitions.”[31]

Advertising of cluster munitions at UK arms fairs

The 2010 Cluster Munitions (Prohibitions) Act makes it an offence for a person to “make arrangements under which another person acquires a prohibited munition” or “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.

In September 2011, the issue of advertising of cluster munitions at arms fairs in the UK again emerged when Green Party leader Caroline Lucas MP raised concern that the Pakistan Ordnance Factory stand and Pakistan’s Defence Export Promotion Organization pavilion at the Defence Systems and Equipment International Exhibition (DSEi) in London were displaying promotional materials advertising their cluster munitions.[32] Lucas stated that she was “shocked that the British Government seems unable or unwilling to police arms sales happening here on its own soil.”[33]

DSEi permanently shut down both exhibits after the materials were found to “breach UK government export controls and our own contractual requirements.”[34] NGOs had raised concerns about the same Pakistani companies for advertising cluster munitions at DSEi in 2009.[35]

In December 2011, the government said, “provided companies which produce cluster munitions do not engage in such promotional activities in the UK the Government have no plans to prohibit such companies from attending UK trade events.” The government placed responsibility with the event organizers, noting that “major UK defence exhibitions are commercial events and the admission of companies is a matter for the commercial organisers.”[36]

In February 2012, Lord Dubs questioned the government on actions they had taken following the display of promotional material for cluster munitions at DSEi in September 2011. The government asserted that the display was in breach of the terms of conditions of the fair, and noted that they would continue to emphasize to the organizers the importance of exhibitors complying with such conditions. The government failed to mention that advertising cluster munitions in the UK is contrary to UK law under the 2010 Cluster Munitions Act.[37]

Investment

While direct investment in cluster munitions is considered prohibited under the Cluster Munitions (Prohibitions) Act under the prohibition on assistance, the issue of indirect investments is not addressed. Previously, in January 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.[38] The working group is not believed to have met as of July 2012. In October 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.”[39] Other parliamentary statements suggest little work by the government to address the issue of indirect investment.[40]

Financial institutions have responded to public pressure and campaigning actions by NGOs calling for disinvestment from cluster munition manufacturers. Research by IKV Pax Christi and Fairfin (formerly Netwerk Vlaanderen),[41] together with public campaigning led by Amnesty International UK,[42] received strong media interest in the second half of 2011 and first half of 2012.

In August 2011, The Independent newspaper reported that “The Royal Bank of Scotland, Lloyds TSB, Barclays, and HSBC have all provided funding to the makers of cluster bombs, even as international opinion turns against a weapons system that is inherently indiscriminate and routinely maims or kills civilians.”[43] On 1 September 2011, Reuters reported that the Royal Bank of Scotland (RBS) had changed its policy and issued a statement that “after discussions with various NGO (non-governmental organization) groups, we have identified some defence sector clients whose activities could be considered to be outside the spirit of the Convention. As a result, we will be suspending all further services to any client where we cannot be certain that they are in compliance with our policy.”[44] In October 2011, a treasury official stated that with respect to Royal Bank of Scotland and Lloyds Banking Group, “[b]oth publicly-owned banks have issued denials that they knowingly support or provide finance to companies who manufacture weapons that would be in breach of the convention. RBS has publicly stated that it will not knowingly support or provide finance to companies who manufacture weapons that would be in breach of the letter or the spirit of the convention.”[45]

On 14June 2012, IKV Pax Christi and FairFin launched their updated report “Worldwide investments in Cluster Munitions.” The report highlighted significant progress in UK financial institutions moving away from investment in cluster munition manufacturers, noting in particular positive developments in the positions of Royal Bank of Scotland, Lloyds, Aviva, Co-operative Financial Services and HSBC.[46] However, some nine UK financial institutions were criticized by the report for continuing to undertake investments in companies producing these weapons.[47] The NGO Handicap International (HI) reinforced the report’s release with an online petition action “Don’t let the government stay silent on cluster bomb investments.”[48]

In July 2012, Transport for London faced criticism in the media and from HI UK for accepting advertisements from US arms manufacturer Lockheed Martin, a known producer of cluster munitions.[49]

Convention on Conventional Weapons

The UK is party to the Convention on Conventional Weapons (CCW). After actively supporting a new CCW protocol on cluster munitions for several years, the UK played a more passive role in both the preliminary and final negotiations during the CCW’s Fourth Review Conference in Geneva in November 2011. The UK’s dwindling level of activity came after a significant domestic debate on the merits of the draft protocol under consideration.

In August 2011 when it appeared that the chair’s draft text of a cluster munitions protocol might be agreed upon at the Review Conference, UK NGOs coordinated by the NGO Article 36 worked in partnership with parliamentarians from the All Party Parliamentary Group on Weapons and Protection of Civilians to undertake intensive outreach aimed at ensuring that the UK would not support a legal instrument in the CCW that established a lower standard than that of the Convention on Cluster Munitions.[50]

Member of Parliament Martin Caton (Labour, Gower) presented a cross-party motion in the House of Commons on 7 November that affirmed the “historic” Convention on Cluster Munitions and expressed alarm “at the attempt by the US and others to use the United Nations Convention on certain Conventional Weapons to negotiate a new protocol on cluster munitions that would ban some older weapons but allow, indefinitely, some of the worst offenders.”[51] While initiating a parliamentary debate in the House of Commons on 9 November 2011, Caton expressed concern that a CCW protocol “would be a major step backwards, as it would effectively undermine” the Convention on Cluster Munitions.[52]

In response, Minister of State David Lidington said “we are a long way from seeing a protocol that we regard as worth debating or as acceptable in any way” and affirmed that the UK’s participation in the Review Conference would be “guided by our determination to deliver a significant humanitarian outcome and, crucially, not to undermine the progress made under the Oslo treaty.”[53] In response to a parliamentary question, Foreign Secretary William Hague stated, “[W]e certainly do not want to weaken what has been agreed in the past.”[54]

In a debate in the House of Lords on 10 November 2011, Lord Elton asked the government to explain how its support for the CCW protocol was consistent with its obligations under Article 21 of the Convention on Cluster Munitions to promote the ban with states not party. In response, Lord Howell asserted that the UK would “not sign up to anything that would undermine the gold standard … of the existing convention,” stating that “we do not want to legitimise lower standards or undermine or dilute the Convention on Cluster Munitions in any way.”[55]

During the two weeks of negotiations on the chair’s draft text at the Fourth Review Conference in November 2011 the UK did not make any notable statements or undertake any significant activities either in support of or opposition to the draft text. On the final day of the conference, the UK did not join with a group of 50 states that issued a joint statement declaring that the draft CCW protocol did not enjoy consensus and was unacceptable from a humanitarian perspective.[56]

The conference ended without adopting a protocol and with no proposals to continue negotiations in 2012, marking the end of the CCW’s work on cluster munitions. By remaining silent during the review conference, the UK was acknowledged by some as opposing the CCW protocol, even though it did not provide its views in support or against the consensus on adopting it.[57]

Use, production, and transfer

The UK used cluster munitions extensively in the past, including in the Falkland Islands in 1982, in Iraq and Kuwait in 1991, in the Federal Republic of Yugoslavia (including Kosovo) in 1999, and in Iraq in 2003.[58]

The UK has also produced, exported, and imported cluster munitions.

The UK produced several variants the BL-755 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.[59]

BL-755 cluster bombs were exported to, or were otherwise finally possessed by, the following countries: Belgium, Bosnia and Herzegovina (BiH), Croatia, 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.[60]

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.[61]

Stockpiling and destruction

The UK has declared the possession of a stockpile of 191,128 cluster munitions and 38,758,898 submunitions.[62] The stockpile was withdrawn from service by 30 May 2008 and the majority had been destroyed as of July 2012.

Under Article 3 of the Convention on Cluster Munitions, the UK is required to declare and destroy or ensure the destruction of all stockpiled cluster munitions under its jurisdiction or control as soon as possible, but not later than 1 November 2018.

In September 2011, the UK affirmed, “it is our intention that all UK stocks will be destroyed by the end of 2013,” and said the destruction schedule “reflects the limited destruction capacity available to destroy the munitions in a safe, secure, environmentally friendly and responsible manner.”[63]

In April 2012, the UK reported that 71.51% of the UK stockpile had been destroyed. It reported the destruction of 5,561,556 explosive submunitions in the reporting period (1 April 2011 to 31 March 2012).[64] In its initial Article 7 report (April 2011), the UK indicated that some 16,605,750 explosive submunitions remained in stocks as of 31 March 2011 (excluding those retained for training and research).[65] Therefore, this reporting period saw the destruction of approximately one-third of the remaining UK stockpile. As of 31 March 2012, the UK reported that 11,044,194 explosive submunitions were still to be destroyed.[66]

Cluster munitions stockpiled and destroyed by the UK

The stockpile destruction is being conducted by German company NAMMO Buck (for the L20A1 projectiles) and by the Italian company Esplodenti Sabino (for the M26 rockets).[67] The UK has estimated the cost of destruction at approximately £40 million.[68]

Retention for training

In its initial Convention on Cluster Munitions Article 7 report (April 2011), the UK declared that it was retaining 956 explosive submunitions of four different types and reported that 12 of the M42 explosive submunitions had been consumed within the reporting period to 31 March 2011.[69]

The UK’s second Article 7 report (April 2012) lists the same 956 explosive submunitions of four different types retained for training.[70]

In September 2011, the UK 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.” The UK stated that while “the numbers that the UK may retain in the future may vary as operational circumstances dictate” it will “always remain the minimum necessary.”[71]

The “Starstreak” missile

Cluster Munition Monitor 2011 reported in detail on the ambiguous relationship of the “Starstreak” high velocity missile, produced by Thales Air Defence Limited, to the terms of the Convention on Cluster Munitions and the UK’s Cluster Munitions (Prohibitions) Act.[72] In 2012, these missiles became a focus of public attention in the UK after it was announced that a number of these systems would be situated on London residential rooftops as part of the air-defense security arrangements for the 2012 London Olympics. In addition to protest marches and petitions, the deployment led residents in one of the sites to seek a judicial review of the placement of the missiles on the grounds that it may make the residences a target for terrorist attack. However, their appeal for such a review was rejected.[73]