Commitment to the Convention on Cluster Munitions

Policy

The Kingdom of Spain signed the Convention on Cluster Munitions on 3 December 2008 and ratified on 17 June 2009. It was among the first 30 ratifications that triggered entry into force of the convention on 1 August 2010.

Spain submitted its initial Article 7 report on 27 January 2011, for the period from 1 August 2010 to 27 January 2011. 

Under national implementation, Spain has reported that the Penal Code was amended on 22 June 2010 to include penal sanctions related to cluster munitions as well as mines.[1] According to the amended Penal Code, violations relating to the use, development, manufacturing, sale, stockpiling, and trafficking of cluster munitions are punishable by a penal term of five to 10 years or three to five years for violations of the prohibition on assistance.[2]

Prior to entry into force, Spain declared a unilateral moratorium on use, production, and transfer of cluster munitions on 11 July 2008.[3] Directive no. 71/2008, issued by the Secretary of Defense on 30 July 2008, has regulated implementation of the convention by Spain’s Armed Forces.[4]

Spain participated throughout the Oslo Process that created the convention and its position evolved significantly to support a comprehensive ban on all cluster munitions. Following the adoption of the convention in Dublin in May 2008, Spain rapidly began to implement its provisions.[5]

Spain continued to participate in the work of the convention in 2010 and the first half of 2011. Spain attended the First Meeting of States Parties to the Convention on Cluster Munitions in Vientiane, Lao PDR in November 2010, where it encouraged states that have not yet done so to join to the convention and provided a statement on the completion of its stockpile destruction in March 2009. Spain also participated in intersessional meetings of the convention in Geneva in June 2011, where it made a statement regarding the transfer of cluster munitions from Spain to Libya in 2006 and 2008 (see Transfer section below).[6]

In its Article 7 report, Spain stated that it uses all relevant fora to make known its position on the Convention on Cluster Munitions and encourage states to join the convention.[7] At the intersessional meetings in June 2011, Spain stated that the universality of the convention must be a priority for all members.[8]

Also at the intersessional meetings in June 2011, Spain said it “firmly condemns” the use of cluster munitions in Libya.[9] Spain noted that it had advocated in support of the April 2011 statement by the European Union (EU) that also condemned cluster munition use in Libya.[10] In a June 2011 meeting, Spain’s Permanent Representative to the Conference on Disarmament, Ambassador Javier Catalina, expressed Spain’s “strong political commitment” to the convention and noted, “We think it is the universal standard that should be complied with by everybody.”[11]

Spanish NGOs have continued to take action in support of the Convention on Cluster Munitions.[12]

Interpretive issues

Spain has not yet made known its views on certain important issues related to interpretation and implementation of the convention, including the prohibition on transit, the prohibition on assistance during joint military operations with states not party that may use cluster munitions, and the prohibition on investment in production of cluster munitions.

On the issue of foreign stockpiling, in its Article 7 report Spain stated that it is in the process of informing states not party with which it cooperates in joint military operations of its obligations and adherence to international agreements on both cluster munitions and mines, including its commitments with respect to the prohibition of storage of prohibited weapons on territory under its jurisdiction or control.[13]

Convention on Conventional Weapons

Spain is party to the Convention on Conventional Weapons (CCW) and its Protocol V on explosive remnants of war. Spain participated in the CCW deliberations on cluster munitions in 2010 and the first half of 2011.

In June 2011, a government representative informed the CMC that Spain was concerned at the CCW work on cluster munitions.  The representative said that there was no EU statement given at the CCW meetings on cluster munitions held in April 2011 because Spain had objected and expressed concern that a weak EU statement on the CCW work on cluster munitions was worse than no statement.[14] In September 2010, Spain observed that the chair’s draft text did not represent progress or a step forward.[15] In August 2010, Spain said that any CCW instrument on cluster munitions must be compatible with the Convention on Cluster Munitions.[16]

Use and production

Spain has stated that it has never used cluster munitions.

In its Article 7 report, Spain confirmed that the company Instalaza SA from Zaragoza produced two types of 120mm mortar projectiles containing submunitions: the ESPIN-21 and MAT-120. In May 2011, Spanish media reported that Instalaza SA had filed a claim with the government for approximately €40 million (US$56 million), an amount that reportedly reflects damages and profits lost in 2009 from the cancellations of sales to seven countries.[17]

Spain also confirmed that the company Explosvos Alaveses SA (EXPAL) produced the BME-330B/AP cluster bomb.[18]  According to a standard reference work, EXPAL has produced two other types of BME bombs, both of which are banned under the Convention on Cluster Munitions. The BME-330AT cluster bomb contains 516 bomblets, a mixture of 512 armor-piercing SAC-1 AP antipersonnel bomblets and four MAC-2 antitank mines.[19] The BME-330C (multipurpose) cluster bomb holds 180 bomblets of three different types: the CP fragmentation (antipersonnel), the CH shaped charge (anti-armor), and the SNA area denial bomblets.[20]

Spain did not report on the conversion of cluster munition production facilities its Article 7 report.[21]

Transfer

Spain apparently imported two variants of the Rockeye cluster bomb, the CBU-99B and CBU-100, from the United States (US).[22]

Pursuant to the unilateral moratorium enacted by the Spanish government in June 2008, the Ministry of Industry, Tourism, and Trade and the Inter-Ministerial Board that regulates Foreign Trade on Defense and Dual Use Goods were instructed to deny all requests for the export of cluster munitions as of 11 June 2008.[23]

Other than to Libya, few details are known on past Spanish exports of cluster munitions. Peru possesses a BME-330 cluster bomb of Spanish origin.[24]

Transfer of cluster munitions to Libya

At the intersessional meetings in June 2011, Spain made a statement condemning use of cluster munitions in Libya and confirming that the cluster munitions used had been transferred from Spain to Libya in 2006 and 2008, prior to the adoption of the convention and Spain’s export moratorium.

The New York Times and Human Rights Watch reported on 15 April 2011 that government forces loyal to the Libyan leader, Muammar Gaddafi, had used MAT-120 mortar projectiles containing submunitions in residential areas of Misrata. Both organizations examined and photographed remnants of expended projectiles and unexploded submunitions. According to the markings on the remnants, the carrier munitions and submunitions were manufactured in 2007 by Instalaza SA.[25]

Following the revelation of Libya’s use, the CMC urged Spain to provide information on the transfers of cluster munitions to Libya.[26]  In June 2011, Spain confirmed the transfer, stating that a total of 1,055 MAT-120 cluster munitions (containing 22,155 submunitions) were transferred to Libya in 2006 and 2008.[27] It confirmed information provided to the New York Times by the Deputy Director General for Foreign Trade of Defense Materials and Dual Use Goods, Ramon Muro Martinez:

One license to Lybia [sic] consisting of 5 cluster munitions for demonstration was issued in August 2006. The export took place in October 2006. There were two more licenses issued in December 2007 with a total amount of 1,050 cluster munitions. They were sent in March 2008.[28]

The last shipment was made three months prior to the enactment of the transfer moratorium (July 2008) and two months prior to the adoption of the Convention on Cluster Munitions (May 2008).[29]

In its April 2011 letter to Spain, the CMC noted that Instalaza SA was still listing the MAT-120 mortar projectile on its website and requested that Spain ask the company to remove all reference to the weapon so that it is completely clear that this weapon can no longer be produced or transferred by a Spanish company.[30]

In early May 2011, Spanish parliamentarians asked the government to provide information on the cluster munitions transferred from Spain to Libya and other countries and also asked what measures had been taken to instruct Instalaza SA to remove the MAT-120 information from its website.[31] The government responded that Instalaza SA ceased production of cluster munitions as a result of the 2008 moratorium and said that Spanish companies are legally responsible for the content of their websites.[32]

As of July 2011, Instalaza SA continued to feature information on the MAT-120 on its website.[33]

Stockpiling and destruction

Spain was the first signatory to the Convention on Cluster Munitions to complete stockpile destruction.

According to its Article 7 report, Spain destroyed a total of 4,762 cluster munitions containing 232,647 submunitions. Five types of cluster munitions were destroyed: 1,950 ESPIN-21 120mm mortar projectiles (containing 40,950 submunitions); 1,852 MAT-120 120mm mortar projectiles (containing 38,892 submunitions); 575 CBU-100 and CBU-99 Rockeye bombs (containing 142,025 submunitions); and 385 BME-330 B/AP bomb (containing 10,780 submunitions).[34] There are discrepancies between these numbers and those reported earlier by Spain, which the government should explain.[35]

The stockpile was destroyed in a seven-month period from December 2008 and March 2009.[36] Stockpile destruction began swiftly after the 11 July 2008 moratorium that included “the commitment of Spain to destroy [existing] weapons of the Armed Forces as soon as possible.”[37]

The Spanish government paid €4.9 million ($6.8 million) to the company Fabricaciones Extremeňas SA (FAEX), of the Maxam Industrial Group, to destroy the stockpile of cluster munitions, at a unit cost ranging between €500 ($697) to €6,000 ($8,361) depending on the type of munition.[38] Instalaza SA dismantled the ESPIN-21 and MAT-120 cluster munitions, which were subsequently destroyed by FAEX.[39]

The stockpile destruction was completed in March 2009, three months ahead of schedule.[40]

Retention

In its Article 7 report, Spain reported the retention of 711 cluster munitions containing 16,562 submunitions for training and countermeasures testing purposes permitted under Article 3 of the Convention on Cluster Munitions: 366 MAT-120 mortar projectiles (containing 7,686 submunitions); 331 ESPIN mortar projectiles (containing 6,951 submunitions); seven CBU-100 (containing 1,729 submunitions); and seven BME-330 B/AP bombs (containing 196 submunitions).[41] 

This is 152 cluster munitions and 12,053 submunitions fewer than 863 cluster munitions and 28,615 submunitions that Spain indicated in 2010 and 2009 would be retained.[42]

Spain has not provided an explanation for the decrease or provided details on the intended uses or purposes of the cluster munitions. The CMC remains concerned at the considerable number of cluster munitions and submunitions that Spain has retained for training.