Commitment to the Convention on Cluster Munitions

Policy

The Federal Republic of Germany signed the Convention on Cluster Munitions on 3 December 2008 and ratified on 8 July 2009. It was among the first 30 ratifications that triggered entry into force on 1 August 2010.

Germany’s War Weapons Control Act was amended in June 2009 to provide for national implementation of the convention’s prohibitions on the use, production, transfer, development, or stockpiling of cluster munitions. It includes penal sanctions for violations of up to five years imprisonment.[1] The act also establishes extraterritorial jurisdiction over German citizens violating its law overseas.[2]

Germany submitted its updated annual Convention on Cluster Munitions Article 7 transparency report on 30 April 2012, covering calendar year 2011.[3]

Germany participated throughout the Oslo Process that produced the Convention on Cluster Munitions and its position evolved significantly to support an immediate and comprehensive prohibition on cluster munitions.[4] Since the adoption of the convention in Dublin in May 2008, Germany has played a leading role in advancing the work of the convention. It hosted an international conference on the destruction of cluster munitions in Berlin in June 2009.

At the convention’s Second Meeting of States Parties in Beirut, Lebanon in September 2011, Germany was made co-coordinator on stockpile destruction and retention together with Croatia. At the meeting, Germany commended the “strong start” that States Parties and signatories have made with respect to their stockpile destruction obligations, which Germany said “creates an encouraging momentum for the accomplishment of the ambitious disarmament goal of the Convention.”[5] Germany made a several statements at the meeting, including on clearance, stockpile destruction, retention, and international cooperation and assistance.

Germany participated in intersessional meetings of the convention in Geneva in April 2012, where it made a number of statements, including on clearance as well as international cooperation and assistance. At the meeting, Germany co-chaired the session on stockpile destruction and retention.

In 2011 and the first half of 2012, Germany continued to actively promote the universalization of the Convention on Cluster Munitions. In June 2012, the German Federal Foreign Office informed the Monitor that Germany has promoted the convention on many occasions, including in workshops and at international conferences, and by contacting countries that have not yet joined the convention.[6]

At the Second Meeting of States Parties, Germany stated that universalization remains a key objective and expressed its hope that all states that have not yet done so will ratify or accede to the Convention on Cluster Munitions. Germany condemned reports of new cluster munition use and called for the stronger efforts to “effectively discourage any use of cluster munitions by any actor.” It said that “any use of cluster munitions, given their indiscriminate nature and the unacceptable harm they cause for the civilian population, is of grave concern. The reported instances of use of cluster munitions in recent months clearly run contrary to our cause: to end for all time the suffering caused by these weapons.” [7]  

According to February 2012 report by the German Federal Foreign Office, Germany intends to increase its efforts to promote universalization of the Convention on Cluster Munitions and to encourage non-signatory states with large stockpiles such as China and Russia to begin destroying their stockpiles.[8]

Interpretive issues

In 2012, Germany expressed its views on a number of important issues related to interpretation and implementation of the convention, including the prohibition on assistance during joint military operations with states not party that may use cluster munitions, the prohibition on transit, the prohibition on investment in cluster munitions production, and the retention of cluster munitions for training and research purposes.

During the negotiations of the convention, Germany advocated strongly for provisions on “interoperability” (joint military operations with states not party). In June 2012, the German Federal Foreign Office informed the Monitor that prior to the entry into force of the convention on 1 August 2010, Germany issued “clear orders for the German Armed Forces” that “forbade German soldiers from using cluster munitions themselves, and from requesting or ordering the use of cluster munitions.” The instructions also “further prohibited the transport of cluster munitions using Bundeswehr [Federal Armed Forces] vehicles and/or personnel. Ordering or assisting such transport was also banned.” The Federal Foreign Office also stated that “the German Government regularly holds bilateral talks with partners that have not joined the Convention yet, informing them about the obligations stemming from the Convention and encouraging them to join.”[9] Germany’s implementation legislation prohibits transit of cluster munitions.[10]

Germany has yet to express clear views on the prohibition on foreign stockpiling of cluster munitions, but US diplomatic cables made public by Wikileaks in 2011 shows that Germany has engaged with the United States on the matter of cluster munitions stored by the US in Germany.[11]

On the retention of cluster munitions for training or research purposes, in June 2011 the Federal Foreign Office stated, “Germany is of the opinion that the retention of cluster munitions, explosive submunitions and bomblets for training and research purposes is a national responsibility, but that only the smallest fractions of the former holdings of cluster munitions should be retained that are absolutely necessary for such purposes”[12] (see the Retention section below).

Disinvestment

Germany’s implementation legislation, the War Weapons Control Act, does not explicitly prohibit investment in cluster munition production. In June 2012, the Federal Foreign Office informed the Monitor that the “Federal Government expects…German financial institutions to respect the legal obligations under the War Weapons Control Act and to implement their voluntary commitments aimed at disinvesting in the field of [cluster munitions]” and added that it is “following the relevant developments closely.”[13]

In 2011 and 2012, two motions were submitted to the German parliament calling for the amendment of its national implementation legislation, the War Weapons Control Act (Kriegswaffenkontrollgesetz) of 2009, to include a comprehensive ban on direct and indirect investment in cluster munition producers. On 18 October 2011, opposition parties the Alliance90/Greens, the Social Democratic Party, and the Left Party collectively presented a motion in parliament for the act to be amended to include a ban on direct and indirect financing of companies involved in the production and development of cluster munitions.[14] The motion was rejected on 30 November 2011.[15] In March 2012, the same parties again presented a motion to amend the act to state that the encouragement of the production of cluster munitions, which is banned, includes any form of financing this process, but the motion was rejected on 22 March 2012.[16]

German NGOs continued to campaign in 2011 and the first half of 2012 for a comprehensive ban on financing in cluster munition production.[17] On 14 June 2012, NGOs IKV Pax Christi and FairFin (formerly Netwerk Vlaanderen), supported by Facing Finance, held a press conference in Berlin to release an update of their report, “Worldwide Investments in Cluster Munitions; a shared responsibility.” The 2012 report lists German financial institutions Allianz and Deutsche Bank as still heavily investing in cluster munition producers and highlights two German banks (WestLB and Commerzbank) that have taken measures to curtail investments in cluster munitions.[18]

Convention on Conventional Weapons

Germany is a party to the Convention on Conventional Weapons (CCW) and it actively engaged in CCW efforts to negotiate a protocol on cluster munitions in 2011.

At the UN General Assembly’s First Committee on Disarmament and International Security in October 2011, Germany stated that the negotiations on a CCW protocol on cluster munitions “should lead to substantial improvements on the ground which should be compatible with and complementary to the Convention on Cluster Munitions.” Germany said that any CCW instrument “needs to make a significant humanitarian contribution, containing an immediate prohibition on the use, production or transfer of cluster munitions.”[19]

On 19 October 2011, the German parliament’s disarmament committee held a meeting to discuss the proposed CCW protocol on cluster munitions. Opposition party representatives emphasized that the proposed CCW protocol was unacceptable as drafted, as did the ICRC and Facing Finance.[20] Officials from the Federal Foreign Office responded that it was still possible to improve the chair’s draft text to have a significant humanitarian added value and said their office would continue to work for a CCW protocol.[21]

On 8 and 9 November 2011, two motions were presented in the German parliament calling on the German government not to support the proposed CCW protocol and to reject any legal instrument that could weaken the provisions of the Convention on Cluster Munitions or undermine its stigmatizing effects.[22] Both motions were rejected on 10 November 2011.[23]

At the outset of the CCW’s Fourth Review Conference on 15 November 2011, Germany was one of a few Convention on Cluster Munitions States Parties that expressed willingness to accept the chair’s draft protocol text as the basis for negotiations, although it strongly criticized the weakness of a number of the text’s provisions.[24] Germany also said “we believe a CCW Protocol on cluster munitions must represent an intermediary step towards comprehensive prohibitions in the future.”[25]

During the negotiations, Germany sought the inclusion of a so-called endeavor clause under which states would “endeavor” to strengthen the protocol in the future. Germany argued the chair’s draft text of the proposed CCW protocol represented not a regression of international humanitarian law, but a progression, as it would bring on board countries that have not joined the Convention on Cluster Munitions and would contain new prohibitions and restrictions.[26]

Towards the conclusion of the negotiations, Germany praised the chair on the “successful completion of what seemed to be mission impossible” and expressed satisfaction with the draft text, which it said represents “another evolution towards final compromise.”[27] On the final day of the conference, Germany did not join a group of 50 states that issued a joint statement declaring that the draft chair’s text did not enjoy consensus and was unacceptable from a humanitarian perspective. 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.

In response to a media article criticizing Germany’s support for the proposed CCW protocol,[28] the Federal Foreign Office stated on 28 November that, “If there had been a vote, Germany, moreover, would have voted no, because the final text of the draft was in the German view, profoundly unsatisfactory and would not improve but weaken the humanitarian protections against cluster munitions.”[29]

In February 2012, the Federal Foreign Office stated that following the failure to conclude the CCW protocol, the German government would expand its efforts to promote the universalization of the Convention on Cluster Munitions by approaching non-signatories with significant stockpiles, such as Russia and China, to promote accession and stockpile destruction, as well as by calling on these states to implement the national measures that they stated they were prepared to take during the review conference negotiations on the CCW protocol.[30]

German civil society organizations, including Facing Finance, campaigned against German support for a weak CCW protocol during 2011 through outreach to government officials and media work.[31]

Use, production, and transfer

According to the Ministry of Foreign Affairs, Germany has never used cluster munitions and stopped production and transfer in 2005.[32] Germany unilaterally renounced the use of all types of cluster munitions on 29 May 2008, one day before it adopted the Convention on Cluster Munitions in Dublin.[33]

In the past, German industry was very active in the production and export of cluster munitions. Germany also imported cluster munitions from the United Kingdom (UK) and the United States (US). In its initial Article 7 report, Germany stated that “all former production capabilities were dismantled prior to 2008.”[34] The last known export was in 2004-2005 when Germany sent a quantity of M26 rockets with submunitions to Slovakia.[35]

The company Diehl GmbH and numerous subcontractors were involved in the production of M26 rockets for the 227mm Multiple Launch Rocket System (MLRS) as part of the MLRS European Producers Group.[36] Lenkflugkörpersysteme GmbH produced the MW-1 dispenser (that deploys submunitions) for aircraft.[37]

The company Rheinmetall produced several types of 155mm artillery projectiles containing dual purpose improved conventional munition (DPICM) submunitions.[38] These were produced for the German Armed Forces as well as for export customers including Austria, Denmark, Finland, Greece, Italy (co-production), and Norway.[39]

A consortium of Diehl, Gesellschaft für Intelligente Wirksysteme mbH (GIWS), and Rheinmetall produce the SMArt-155 artillery projectile, a weapon that employs two submunitions but is not considered a cluster munition under the Convention on Cluster Munitions because it meets the five technical criteria set out by negotiators as necessary to avoid the negative effects of cluster munitions.[40] This has been produced for the German Armed Forces and export customers Greece and Switzerland.[41] The consortium granted Alliant Techsystems in the US licensed co-production rights for the SMArt-155, and Alliant has marketed the munitions in the United Arab Emirates. According to the NGO Actiongroup Landmine.de, over 25,000 SMArt-155 projectiles have been produced.[42] Facing Finance has estimated that between 2000 and 2003, Germany acquired 9,000 SMArt-155 howitzer projectiles, and in 2011, it was estimated that up to €510 million ($676 million) had been spent for the acquisition and development of the SMArt-155 howitzer projectiles.[43] According to the Ministry of Defense, as of March 2011, the SMArt-155 has not been used by the German Army in any operations as part of International Security Assistance Force in Afghanistan.[44]

In June 2012, according to Facing Finance, a German company continued to advertise the mechanical fuze DM 163 on its website, describing it as a fuze which can be used for cargo projectiles for smoke, illuminating, and bomblet ammunition.[45] After a media inquiry the term “bomblet ammunition” was removed from the advertising display.[46]

Stockpiling

Germany once possessed in total 552,608 cluster munitions containing 63,297,553 submunitions, including weapons destroyed prior to entry into force of the Convention on Cluster Munitions, as detailed in the following table.[47] All of Germany’s stockpiled cluster munitions have been removed from service and marked for destruction and/or retention.[48]

Cluster munitions stockpiled by Germany (as of 31 December 2011)

As of 31 December 2011, Germany’s remaining stockpile consisted of 181,230 cluster munitions and 27,351,106 submunitions.

Stockpile destruction

Under Article 3 of the Convention on Cluster Munitions, Germany is required to destroy all its stockpiled cluster munitions as soon as possible, but not later than 1 August 2018. Germany has stated on a number of occasions its intention to complete stockpile destruction by the end of 2015.[49]

In April 2012, Germany stated that as of 31 December 2011, 66% of its stockpile had been destroyed and it said it was “well on track” to complete its stockpile destruction by the end of 2015.[50]

By 31 December 2011, Germany had destroyed a total of 371,378 cluster munitions and 35,946,247 submunitions. During 2011, a total of 61,045 cluster munitions and 7,989,453 submunitions were destroyed.

Previously, in September 2011, Germany stated that 63% of its total stockpile had been destroyed since the start of its stockpile destruction in 2001 and it reported that more than 18,000 cluster munitions containing over two million submunitions were destroyed in the period from 1 June to 31 August 2011.[51]

Germany started destroying its BL-755 cluster bombs in the period from 2001 to 2008, following reliability concerns. In June 2009, Germany stated that it had destroyed “approximately 65,000 grenades [meaning DPICM submunitions], launch tube clusters and weapons containing 4.5 million submunitions.”[52] Destruction of DM612 155mm artillery projectiles began in 2007, and followed with other types in 2009, aiming to finish in 2012. Destruction of MW-1 began in 2009 and was due for completion in 2011. The destruction of M26 rockets began in 2009 and should be finished in 2015.[53]

Germany’s cluster munitions stockpile is being destroyed at three locations: Nammo Buck in Pinnow, Spreewerk Lübben in Lübben, and Muniberka in Dietersdorf. The reports describe the safety and environmental standards to be observed.[54]

In June 2009, the parliamentary committees for defense and budgets approved a “detailed working plan, schedule, and budgetary plan” for destruction of stocks.[55] According to its April 2012 Article 7 report, the total cost of Germany’s stockpile destruction is €41.4 million.[56]

Retention

In its Article 7 report provided in April 2012, Germany for the first time reported the types and quantities of cluster munitions and explosive submunitions that it is retaining for training and research purposes. The total number retained amounts to 743 cluster munitions and 68,910 submunitions.[57]

Cluster munitions and explosive submunitions retained in accordance with Article 3(6)[58]

 

Germany has retained by far the largest number of submunitions of any State Party. The CMC is concerned at the retention of such a high numbers of cluster munitions and submunitions, which are larger than the national stockpiles reported by a number of States Parties. It is not clear that Germany’s training program is large enough to require the consumption of such a high quantity of submunitions.

In June 2012, the Federal Foreign Office said that the number of cluster munitions and submunitions retained by the Federal Office of Defence Technology and Procurement and by the Federal Armed Forces has been determined on the basis of the following criteria:

1.                  Retention of the estimated number of the various types of cluster munitions and submunitions for training and consistency training of explosive ordnance disposal (EOD) personnel at licensed schools and training facilities calculated to be sufficient for a period of ten years;

2.                  Retention of the estimated number of the various types of cluster munitions and submunitions for the following technical purposes:

-        Development of safeguards against the effects of submunitions.

-        Testing and evaluation of Personal Protective Equipment (PPE) against the effects of submunition explosions.

-        Testing of detection technologies.

-        Testing and evaluation of metal detectors and multi sensor systems.

-        Testing and evaluation of mechanical demining equipment.

-        Documentation of the ageing process of explosives contained in these munitions for the development of specific disposal/clearing methods.”[60]

According to its Article 7 report, during 2011 Germany consumed a total of 39 cluster munitions and 2,862 submunitions during explosive ordnance disposal training.[61]