Policy

The United States of America (US) has not acceded to the Convention on Cluster Munitions.

The US has acknowledged the “important contributions” made by the Convention on Cluster Munitions, but it has not indicated if its 2008 policy on cluster munitions will be reviewed following the failure of the effort that the US led in 2011 to create an alternate international law to regulate cluster munitions through the Convention on Conventional Weapons (CCW), to which it is party.[1]

The US opposed the negotiation of a legally binding instrument in the CCW until June 2007 when the Oslo Process to create the Convention on Cluster Munitions was underway.[2] It subsequently became one of the most ardent supporters of a CCW protocol, working intensively to forge agreement on a draft CCW protocol on cluster munitions.[3] The US said it was “deeply disappointed” at the 2011 failure by the CCW to conclude the draft protocol, which leaves the Convention on Cluster Munitions as the sole international instrument that specifically addresses cluster munitions.[4]

An April 2014 report by the Congressional Research Service on cluster munitions and “potential issues for Congress” stated, “There are doubts that CCW efforts to develop a cluster munitions protocol will be viable, as some nations that are part of the CCW who have also signed the Convention on Cluster Munitions stand in opposition of a CCW protocol on cluster munitions.”[5]

The Obama administration has continued to implement a cluster munition policy created under President George W. Bush in July 2008. Under the 2008 Department of Defense (DoD) policy, by the end of 2018 the US will no longer use cluster munitions that result in more than 1% unexploded ordnance (UXO).[6] Until 2018, any use of cluster munitions that exceed the 1% UXO rate must be approved by the Combatant Commander.[7] The 10-year transition period was seen as “necessary to develop the new technology, get it into production, and to substitute, improve, or replace existing stocks.”[8] Under the policy, all cluster munition stocks “that exceed operational planning requirements or for which there are no operational planning requirements” must be removed from active inventories as soon as possible (but not later than 19 June 2009) and demilitarized as soon as practicable.[9]

In November 2011, the US stated that it would continue to implement the 2008 DoD policy on cluster munitions.[10] As of 31 July 2014, it was not known if the process for the “removal from active inventory of all cluster munition stocks that exceed operational planning requirements” had been completed and no information was available detailing the types and quantities of excess cluster munitions and submunitions that have been demilitarized because the DoD has not reported on its implementation of the 2008 policy.

The US did not directly participate, not even as an observer, in the diplomatic Oslo Process in 2007 and 2008 that resulted in the Convention on Cluster Munitions.[11] However, US Department of State cables made public by Wikileaks show how the US attempted to influence its allies, partners, and other states during the Oslo Process to affect the outcome of the negotiations, especially with respect to the issue of “interoperability” (joint military operations between the US and States Parties to the convention).[12]

The Congressional Research Service’s 2014 report notes that “U.S. officials were concerned that early versions of the [Convention on Cluster Munitions] would prevent military forces from non-states parties from providing humanitarian and peacekeeping support and significantly affect NATO military operations” but found the convention “does permit states parties to engage in military cooperation and operations with non-states parties” under Article 21.[13]

The US has never participated in a meeting of the Convention on Cluster Munitions. It was invited to, but did not attend, the convention’s Fourth Meeting of States Parties in Lusaka, Zambia in September 2013.

Recent Congressional initiatives relating to US cluster munitions policy include:

·         A 17 July 2013 letter to President Obama from US Senators Dianne Feinstein (Democrat [D]-California) and Patrick Leahy (D-Vermont), as well as Representative James McGovern (D-Massachusetts [MA]) urging that the US government’s “outdated” cluster munitions policy be “immediately” and “expeditiously” reviewed to put the US “on a path to join the international Convention on Cluster Munitions.”[14] As of July 2014, the White House had not replied to the letter.

·         On 28 February 2013, Senators Feinstein and Leahy reintroduced the Cluster Munitions Civilian Protection Act, Bill S. 419, to limit the use of cluster munitions to munitions that have a 99% or higher reliability rate, prohibit use of cluster munitions in areas where civilians are known to be present, and require a clearance plan if the US uses cluster munitions.[15] The legislation was referred to the Senate Foreign Relations Committee.

·         On 19 June 2013, Representative Darrell Issa (Republican [R]-California) introduced the Designating Requirements On Notification of Executive-ordered Strikes Act of 2013 or DRONES Act, which includes provisions requiring that US cluster munitions have a less than 1% dud rate and be used only against military targets and not in areas inhabited by civilians.[16]

The US has voted in favor of recent UN General Assembly (UNGA) resolutions condemning the Syrian government’s use of cluster munitions, including Resolution 68/182 on 18 December 2013, which expressed “outrage” at Syria’s “continued widespread and systematic gross violations of human rights…including those involving the use of…cluster munitions.”[17] On 18 December 2013, Senator John McCain (R-Arizona) condemned the Syrian government’s use of cluster munitions, stating that “Americans should be appalled and saddened” by the reports of cluster munition use in Aleppo.[18]

In its capacity as a permanent member of the UN Security Council, the US endorsed a resolution on 27 May 2014 that expressed concern at the “indiscriminate” use of cluster munitions in South Sudan.[19]

In August 2013, after reports that the US was considering a military operation against Syria involving sea-launched Tomahawk cruise missiles, the CMC issued a statement warning the US against any cluster munition use in any military operation against Syria and urging that parties to the Convention on Cluster Munitions help ensure that the weapons are not used.[20] The statement noted that the last US use of a cluster munition in 2009 in Yemen involved the use of a TLAM-D cruise missile containing BLU-97 bomblets. (See Use section below.)

NGOs have continued to press for US action on the Convention on Cluster Munitions.[21]

The US has not joined the 1997 Mine Ban Treaty, but on 27 June 2014, the Obama administration made an “interim” announcement with respect to its ongoing review of US landmine policy that committed to immediately ban US production and acquisition of antipersonnel landmines and initiated other measures that could see the US accede to the Mine Ban Treaty in the future.[22] Since 2009, the US has become a regular observer at Mine Ban Treaty meetings after not participating in the treaty’s first decade of meetings.

Use

The US used cluster munitions in Cambodia, Lao PDR, and Vietnam (1960s and 1970s); Grenada and Lebanon (1983); Libya (1986); Iran (1988); Iraq, Kuwait, and Saudi Arabia (1991); Bosnia and Herzegovina (1995); Serbia, Montenegro, and Kosovo (1999); Afghanistan (2001 and 2002); and Iraq (2003).[23]

Amnesty International and Human Rights Watch (HRW) have confirmed the US use of at least one TLAM-D cruise missile with 166 BLU-97 submunitions to attack an “alleged al-Qa’ida training camp” at al-Ma‘jalah in Abyan governorate in southern Yemen on 17 December 2009.[24] The attack killed 55 people including 14 women and 21 children.[25] Neither the US nor the Yemeni government has publicly responded to the allegations.[26]

A 2010 report on the Yemeni parliament’s investigation into the attack called on the Yemeni government to investigate and “hold accountable those found guilty” of “mistakes that were made causing the deaths of...innocent victims” and called on the Yemeni authorities to compensate victims and remove cluster munition remnants from the site.[27] An October 2013 report by HRW found the cluster munition remnants from the 2009 attack on al-Ma‘jalah were never cleared and have killed four more civilians and wounded 13 others in the period since the attack, most recently in January 2012.[28]

The July 2013 letter by Senators Feinstein and Leahy refers to the Yemen strike and reported civilian casualties. It notes that “current DOD policy requires Combatant Commanders to approve the use of cluster munitions that exceed a one percent unexploded ordnance rate” and requests that the DOD provide “detailed information on the use of cluster munitions since the implementation of current DOD policy” issued in June 2008.[29]

The 2014 Congressional Research Service report asserts that the US military has not used cluster munitions since 2003 and states, “For subsequent military operations, where cluster munitions would otherwise have been the weapon of choice, Congress might review what types of weapons were substituted in place of cluster munitions and how effective they were in achieving the desired tactical results. Also worth considering are effects-based weapons systems and operations, which seek to achieve the same or similar effect against a potential target without applying a ‘kinetic solution’ such as a cluster munition. Such insights could prove valuable in analyzing U.S. policy options on the future of cluster munitions.”[30]

Production

In 2001, then-Secretary of Defense William Cohen issued a policy memorandum requiring that all submunitions reaching the “full rate” production decision by fiscal year 2005 and beyond must have a failure rate of less than 1%.[31] The US has not budgeted any money for producing new cluster munitions since 2007.[32] Research and development activities continue at the applied research level for the purposes of improving the reliability of existing submunitions as well as the development of new types of submunitions. These activities are in programs being conducted by the Air Force, Army, and the Office of the Secretary of Defense.[33]

The US has in the past licensed the production of cluster munitions with Japan, South Korea, the Netherlands, Pakistan, and Turkey.

Transfer

While the historical record is incomplete, in the past the US transferred hundreds of thousands of cluster munitions, containing tens of millions of submunitions, to at least 30 countries: Argentina, Australia, Bahrain, Belgium, Canada, Colombia, Denmark, Egypt, France, Germany, Greece, Honduras, India, Indonesia, Israel, Italy, Japan, Jordan, South Korea, Morocco, the Netherlands, Norway, Oman, Pakistan, Saudi Arabia, Spain, Thailand, Turkey, the United Arab Emirates (UAE), and the United Kingdom (UK).[34] In 2012, Chile’s Ministry of National Defense provided the Monitor with information showing an export to the US in 1991 of one 250kg cluster bomb and one 500kg cluster bomb.[35]

The US first instituted a moratorium on the export or transfer of cluster munitions that do not meet the 1% UXO standard in a 2007 appropriations (budget) bill at the initiative of Senator Leahy. The moratorium was extended the following year as the 2008 Consolidated Appropriations Act, but again the restrictions only applied to that fiscal year.[36]

The 2009 Omnibus Appropriations Act contained similar restrictions as the previous appropriations bills; it prohibited the provision of military assistance for cluster munitions, the issuing of defense export licenses for cluster munitions, or the sale or transfer of cluster munitions or cluster munitions technology unless “the submunitions of the cluster munitions, after arming, do not result in more than 1 percent unexploded ordnance across the range of intended operational environments.” In addition, any agreement “applicable to the assistance, transfer, or sale of such cluster munitions or cluster munitions technology” must specify that the munitions “will only be used against clearly defined military targets and will not be used where civilians are known to be present or in areas normally inhabited by civilians.”[37]

The same export moratorium language was included in the 2010 Consolidated Appropriations Act signed into law by President Obama on 16 December 2009.[38] Similar export moratorium language was included in the 2012 Consolidated Appropriations Act (P.L. 112-74) signed into law on 23 December 2011,[39] the 2013 Continuing Appropriations Resolution signed into law on 28 September 2012,[40] and the 2013 Consolidated and Further Continuing Appropriations Act.[41]

On 19 May 2011, the Defense Security Cooperation Agency (DSCA) issued a memorandum on the sale of cluster munitions that incorporates these legal requirements into DSCA policy by adding them to the Security Assistance Management Manual. According to the US agency that administers weapons transfers, “At present the only cluster munition with a compliant submunition (one that does not result in more than 1% UXO across the range of intended operational environments) is the CBU-97B/CBU-105, Sensor Fuzed Weapon (SFW). The CBU-107 Passive Attack Weapon, which contains non-explosive rods, is not captured by the ban.”[42]

Recent US exports of cluster munitions include sales to the UAE (announced in 2006 of 780 M30 GMLRS rockets),[43] India (announced in 2008 of 510 CBU-105 SFW),[44] Saudi Arabia (announced in 2011 of 404 CBU-105D/B SFW),[45] Taiwan (announced in 2011 of 64 CBU-105 SFW),[46] and the Republic of Korea (announced 2012 of 367 CBU-105D/B SFW).[47]

In April 2013, Representative Gerald Connolly (D-MA) introduced H.R. 1793 or the “Global Partnerships Act of 2013” which contains language identical to the export moratorium on cluster munitions.[48]

Stockpiling

In 2009, a US Department of State official said, “The current stockpile is huge; the DoD currently holds more than 5 million cluster munitions with 700 million submunitions. Using our current demilitarization capabilities, it will cost $2.2 billion to destroy this stockpile.”[49] In 2011, the US stated that the US stockpile includes “more than 6 million cluster munitions,” which indicates that the stockpile may be larger than previously reported.[50]

An October 2004 report to the US Congress by the DoD provides details on a stockpile of 5.5 million cluster munitions containing about 728.5 million submunitions.[51]

US stockpile of cluster munitions (as of 2004)[52]

In a February 2011 presentation to CCW delegates, the US stated that “around two million” cluster munitions would be captured by a CCW proposal for a ban on the use of cluster munitions produced before 1980. The types of cluster munitions included in this figure were listed on a slide projected during an informal briefing to CCW delegates by a member of the US delegation. Several of the types (such as CBU-58, CBU-55B, and M509A1) were not listed in the “active” or “total” inventory by the DoD in a report to Congress in late 2004.

The October 2004 DoD report to Congress provides details on a stockpile of 5.5 million cluster munitions of 17 different types that contain about 728 million submunitions.[53] However, this figure does not appear to be a full accounting of cluster munitions available to US forces. The number apparently does not include cluster munitions that are located in foreign countries or stockpiled as part of the War Reserve Stocks for Allies (WRSA).[54]

The DoD had not publicly reported on the removal of excess cluster munitions from stocks by June 2009, as called for in the 2008 policy. The July 2013 letter to President Obama from Senators Feinstein and Leahy notes that the 2008 policy “requires the Services and Combatant Commands to initiate the removal from active inventory all cluster munition stocks that exceed or do not satisfy operational planning requirements” and requests that the DoD provide “an unclassified report detailing the number of cluster munitions that have been removed from the active stockpile, as well as how many remain.”[55]

Between 2000 and 2012, the US destroyed 9,400 tons of outdated cluster munitions (not including missiles and rockets) on average per year at an average annual cost of $7.2 million. For fiscal year 2012, the funding for the destruction of non-missile cluster munitions and submunitions consumes 24% of the annual budget allocation for the destruction of conventional ammunitions.[56]

Since fiscal year 2007, there has been a separate funding source for the destruction of multiple launch rocket system (MLRS) rockets and ATACM missiles, with special destruction facilities for MLRS rockets at the Anniston Defense Munitions Center in Alabama and the Letterkenny Munitions Center in Pennsylvania. The Army has requested $109 million for the destruction of 98,904 M26 MLRS rockets from fiscal year 2007 to fiscal year 2012.[57]

According to one report, “the Pentagon estimates that ‘upward of 80 percent of U.S. cluster munitions reside in the Army artillery stockpile.’”[58]

Foreign stockpiling and transit

The US appears to have taken action to remove its stockpiles from the territories of at least two States Parties to the Convention on Cluster Munitions. According to a Norwegian Ministry of Foreign Affairs official, the US removed its stockpiled cluster munitions from Norway in 2010.[59] The UK announced in 2010 that there were now “no foreign stockpiles of cluster munitions in the UK or on any UK territory.”[60]

US Department of State cables released by Wikileaks show that the US has stockpiled and may continue to be storing cluster munitions in a number of countries, including Convention on Cluster Munitions States Parties Afghanistan, Germany, Italy, Japan, and Spain, as well as in non-signatories Israel, Qatar, and perhaps Kuwait:

·         In Afghanistan, the “United States currently has a very small stockpile of cluster munitions” according to a December 2008 cable.[61]

·         Germany has engaged with the US on the matter of cluster munitions that may be stockpiled by the US in Germany according to a December 2008 cable.[62]

·         In Israel, US cluster munitions are “considered to be under U.S. title” until they are transferred from the War Reserve Stockpiles for use by Israel in wartime. A cable on the inaugural meeting on 1 May 2008 of the U.S.-Israeli Cluster Munitions Working Group (CMWG) states that “U.S. legislation now prevents such a transfer of any cluster munitions with less than a one percent failure rate.”[63]

·         Italy, Spain, and Qatar are identified in a November 2008 cable as “states in which the US stores cluster munitions,” even though apparently Qatar “may be unaware of US cluster munitions stockpiles in the country.”[64]

·         Japan “recognizes U.S. forces in Japan are not under Japan’s control and hence the GOJ [Government of Japan] cannot compel them to take action or to penalize them” according to a December 2008 cable.[65]

·         The US might be storing clusters munitions in Kuwait according to a May 2007 cable.[66]